FAQs

A Lady Bird Deed, also known as an Enhanced Life Estate Deed, is a legal document used in Florida to transfer property to named beneficiaries while retaining the right to use and control the property during the owner’s lifetime. The use of a Lady Bird Deed can provide certain benefits but also has potential drawbacks that should be carefully considered.

Benefits:

  • Avoids probate: By transferring property via a Lady Bird Deed, the property passes directly to the named beneficiaries upon the owner’s death without the need for probate, which can save time and money.
  • Retains control: The owner can maintain full control over the property during their lifetime, including the right to sell, lease, or mortgage the property without the beneficiaries’ consent.
  • Protects Medicaid eligibility: In some cases, transferring property via a Lady Bird Deed can help protect the owner’s eligibility for Medicaid by reducing the value of their assets.

Drawbacks:

  • Potential tax consequences: Transferring property via a Lady Bird Deed could result in gift or estate tax consequences, depending on the value of the property and other factors.
  • Potential conflicts with other estate planning documents: The use of a Lady Bird Deed may conflict with other estate planning documents, such as a will or trust, and could result in unintended consequences.

In summary, the use of a Lady Bird Deed in Florida can be a useful tool for transferring property while retaining control and avoiding probate. However, potential tax and creditor claim consequences and conflicts with other estate planning documents should be carefully considered before utilizing this legal document. It is recommended to consult with an experienced estate planning attorney to determine whether a Lady Bird Deed is appropriate for your specific circumstances.

Marriages lasting between 7 and 17 years are considered moderate-term marriages by Florida Statute 61.08(4). Under the Florida Statutes, individuals leaving a moderate-term marriage may be entitled to several different types of alimony: 1. “Bridge-the-gap” alimony may be appropriate for parties with “legitimate identifiable short-term needs” which do not exceed two years. 2. “Rehabilitative alimony” may be appropriate for parties that wish to become self-sufficient. In order to qualify for Rehabilitative Alimony, the requesting party must specifically define a plan for rehabilitation. This typically includes plan for the completion of a degree or the business plan with a specifically defined ending point.

3. “Durational Alimony” is the most common type of alimony afforded individuals leaving a marriage of moderate duration. The duration, or term, that the individual will receive alimony under this section will vary from case to case, but a grant of durational alimony cannot surpass the number of years married. To determine the amount of alimony received under this theory, the court will look to the need of the receiving spouse and the ability to pay of the payor spouse. A rule of thumb for determining the amount of alimony that should be received was published by the American Academy of Matrimonial Lawyers in March of 2007. The Academy reported that an alimony amount could be computed by taking 30% of the payor’s gross income minus 20% of the payee’s gross income so long as the total received does not reach above 40% of the combined gross income. As stated, this is a general rule and does not apply to all cases, but when used appropriately, this can give you an idea of what to expect.

4. Finally, “Permanent alimony” can be granted to a individual leaving a marriage of moderate duration if there is clear and convincing evidence that there is a strong need when considering the following factors: (a) The standard of living established during the marriage. (b) The duration of the marriage. (c) The age and the physical and emotional condition of each party. (d) The financial resources of each party, including the nonmarital and the marital assets and liabilities distributed to each. (e) The earning capacities, educational levels, vocational skills, and employability of the parties and, when applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment. (f) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party. (g) The responsibilities each party will have with regard to any minor children they have in common. (h) The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a nontaxable, nondeductible payment. (i) All sources of income available to either party, including income available to either party through investments of any asset held by that party. (j) Any other factor necessary to do equity and justice between the parties. Permanent Alimony, while available for moderate duration marriages, is not a typical result. To determine which type of alimony you are specifically entitled to, your attorney will need to review the financial needs and abilities of both parties.

A Real Estate Investment Trust or REIT for short is a type of trust which holds real property. In recent years, REIT have become popular for real estate investors for two reasons (1) anonymity and (2) probate avoidance. Anonymity is accomplised by purchasing the property in the name of the trust. Since the documents creating the trust are often not recorded in the public record, only the name of the trust will be shown in the ownership records of the property. Probate avoidance is accomplished by placing the property in the name of something other than an individual. Like a company, a trust will survive the death of a trustee (administrator of the trust) so long as there is a successor trustee to carry on its business.

Homestead protection is a legal concept in Florida that provides a homeowner with protection from creditors seeking to force the sale of their primary residence to pay off outstanding debts. The Florida Constitution protects homestead property from forced sale by most creditors, except for liens related to property taxes, mortgages, and construction work. This protection extends to spouses and heirs of the homeowner, providing long-term security for families. In order to qualify for homestead protection, the property must be a permanent residence, and the owner must have an intent to reside there permanently.

Florida’s homestead exemption also provides a tax benefit to homeowners, reducing the taxable value of their property by up to $50,000. This exemption is available to homeowners who have established permanent residency in the state and is not available for commercial properties or rental properties. Additionally, Florida’s Save Our Homes amendment provides a cap on the annual increase of the assessed value of a homestead property, which can provide significant savings in property taxes over time.

Overall, homestead protection in Florida provides a crucial safeguard for homeowners and their families against creditor claims, ensuring the stability and security of their primary residence.

Offer of Judgments can be a useful tool in civil litigation cases for several reasons. One of the most alluring aspects of this tool is that litigants have the ability to collect attorneys’ fees where they would otherwise be prohibited from doing so. This can be a good or bad thing depending on your read of the case. I have provided a link to the .pdf version of both the Florida Statute and the Florida Rule of Civil Procedure. If after reviewing the rules you still have questions, please phone my office to schedule some time for us to sit down and talk about your case and how a offer of judgment can affect it.

In Florida, the dissolution of marriage process typically begins with the filing of a petition for dissolution of marriage by one of the spouses. The petition must be filed in the circuit court of the county where either spouse resides. The petition must state the grounds for seeking the dissolution of marriage, which can include irreconcilable differences or the mental incapacity of one of the spouses.

After the petition is filed, the other spouse must be served with a copy of the petition and has 20 days to file a response. If the parties can agree on the terms of the dissolution, including property division, alimony, child custody, and child support, they may enter into a marital settlement agreement. If the parties cannot agree, the court will schedule a hearing to determine these issues.

Florida has a mandatory waiting period of 20 days after the filing of the petition before a final judgment of dissolution of marriage can be entered. During this time, the parties may attempt to reconcile. If the parties are unable to reconcile, the court will enter a final judgment of dissolution of marriage, which becomes effective immediately. Either party may appeal the judgment within 30 days of its entry.

In general, the dissolution of marriage process in Florida is designed to be as streamlined and efficient as possible, with a focus on encouraging parties to resolve their differences amicably and without undue delay.

Below are links to the most common forms needed to navigate the dissolution process.

  1. a notice of social security number,
  2. financial affidavit,
  3. a affidavit from a corroborating witness.
  4. A petition for dissolution can be in its typical form or can be simplified dissolution of marriage in nature. A simplified dissolution of marriage petition should be used by couples who have mutually decided that they will disolve their marriage and have either do not have any marital assets or have already decided on who they will divide the assets and debts in a marital settlement agreement. Generally, you will not use the simplified forms when there are children involved. Once you have filled out the forms indicated above, you will need to determine what county you will file the suit in.
  5. By rule you will need to live in the jurisdiction you wish to file in for a period of six months prior to the filing of the suit. There are several exceptions to this general rule which require a more indepth analysis of your facts. You can find your clerk of court and their address to file suit by searching on Clerk Web Sites.
  6. In addition to filing the paperwork you will need to submit your filing fee of $408.00; $10.00 for a Summons; and a check for $40.00 (rates may vary) for personal service of your Summons on your spouse. After you have filed the paperwork described above, you have started the clock on several important items.
  7. compliance with mandatory discovery
  8. a proposed final judgment to the court.
  9. The Flagler County Clerk of Court has automated the filling out of many of the necessary forms dissolution proceedings. See their turbo forms here.

In Florida, when two or more individuals own a property jointly and one co-owner wants to sell the property but the others do not, the co-owner who wishes to sell can file a partition action. A partition action is a legal proceeding where the court orders the sale of the jointly owned property, with the proceeds being divided among the co-owners according to their ownership interests.

In a partition action in Florida, each co-owner is entitled to receive their proportionate share of the proceeds from the sale of the property, based on their percentage ownership interest. This means that if there are two co-owners with equal ownership interests, each co-owner would be entitled to receive 50% of the proceeds from the sale of the property. If there are multiple co-owners with different ownership interests, each co-owner’s share of the proceeds would be based on their percentage ownership interest.

Partition actions are governed by Florida Statute Chapter 64. (Statutes & Constitution :View Statutes : Online Sunshine (state.fl.us)). Part 2 of the Chapter was specifically added in 2020 by Florida’s legislature and titled the “Uniform Partition of Heirs Property Act”. The Chapter incorporates in order to address disputes between those who inherit property from relatives, generally parents, through probate, Lady Bird Deeds, or Trust administration. This part of the Chapter provides for the opportunity for each of the beneficiaries to have the property’s value determined by a court and provides the mechanics for purchasing or selling the property to the other beneficiaries or third parties.

Recent cases addressing partition rights and remedies:

  1. In a divorce case where the parties owned a marital residence as tenants by entireties, the wife petitioned for dissolution and a count for partition, as did the husband. The husband filed a motion for summary judgment to partition the property before the final dissolution hearing. The wife argued against this, saying that the law did not allow partition before entry of a final judgment. The court granted summary judgment, finding no dispute of facts concerning the partition since both parties requested it. Although no Florida case law permits partition sale of a marital home owned as tenants by the entireties before entry of a final judgment, there are many cases discussing partition ordered in a final dissolution judgment or thereafter. MYRA BLEW, Appellant, v. MICHAEL BLEW, Appellee. 4th District. Case No. 4D22-2127. March 29, 2023
  2. This case discusses an appeal from a final judgment of partition of real property where both parties have asserted entitlement to appellate attorney’s fees pursuant to section 64.081, Florida Statutes (2016), which requires each party to pay a share of attorney’s fees to the plaintiff’s attorney, the defendant’s attorney, or to each of them, in proportion to the party’s interest. The apportionment of attorney’s fees under section 64.081 must be determined by the trial court, and if entitlement is found, the court may apportion such fees as it determines, in its discretion, to be reasonable, just, and equitable. WHITSON, Appellant, v. ADVOCATE 3413, LLC, Appellee. 2nd District. Case No. 2D21-609. November 16, 2022
  3. Megan Morrison appeals a final money judgment in a partition action for joint ownership of a property, arguing that under Florida Statutes, a money judgment should not have been awarded as it contradicts the nature of the remedy of partition. The trial court ordered the sale of the property and directed each party to pay half of the fees required by the special master, resulting in no funds left to be divided among the parties. Mr. Smolarick filed a complaint for trial in order to determine the amount of reimbursable expenses, but Ms. Morrison objected, stating there were no funds to distribute. The final money judgment is reversed as partition actions do not provide for money judgments. MORRISON, Appellant, v.  SMOLARICK, Appellee. 2nd District. Case No. 2D20-2693. January 28, 2022
  1. What is an estate plan, and why do I need one?

An estate plan is a set of legal documents that outlines your wishes for the distribution of your assets and the management of your affairs after your death or in the event of incapacity. You need an estate plan to ensure that your assets are distributed according to your wishes, to minimize estate taxes and other costs, and to make sure that your healthcare and financial affairs are managed in the way that you would want.

  1. What are the key components of an estate plan?

The key components of an estate plan typically include a will, a durable power of attorney, a healthcare proxy or living will, and possibly a trust. Other components may include a letter of instruction, a business succession plan, and other specialized documents depending on your needs.

  1. How can I ensure that my assets are distributed according to my wishes after my death?

The best way to ensure that your assets are distributed according to your wishes is to create a legally binding will or trust that outlines your specific wishes. It’s also important to review and update your estate plan regularly to ensure that it remains current and reflects any changes in your circumstances or wishes.

  1. How can I minimize estate taxes and other costs associated with transferring my wealth to my heirs?

There are a number of strategies that can be used to minimize estate taxes and other costs, such as creating trusts, making gifts, and setting up charitable foundations. It’s important to work with a qualified estate planning attorney or financial advisor to determine the best strategies for your specific situation.

  1. What is a living trust, and how does it differ from a will?

A living trust is a legal document that allows you to transfer assets into a trust during your lifetime, which can then be managed and distributed by a trustee after your death. A will, on the other hand, is a legal document that outlines your wishes for the distribution of your assets after your death, but does not take effect until after you die.

  1. How can I ensure that my healthcare wishes are respected if I become incapacitated?

You can ensure that your healthcare wishes are respected by creating a healthcare proxy or living will, which outlines your wishes for medical treatment and appoints someone to make healthcare decisions on your behalf if you are unable to do so.

  1. How can I choose the right executor, trustee, or power of attorney to manage my affairs if I am unable to do so myself?

When choosing an executor, trustee, or power of attorney, it’s important to select someone who is trustworthy, responsible, and capable of managing your affairs. It’s also important to have open and honest conversations with the individuals you choose to ensure that they understand your wishes and are willing to fulfill their responsibilities.

  1. How often should I update my estate plan?

It’s generally a good idea to review and update your estate plan every few years, or whenever there are significant changes in your personal or financial circumstances. This can help ensure that your plan remains current and reflects your current wishes.

  1. What happens if I die without an estate plan?

If you die without an estate plan, your assets will be distributed according to state law, which may not align with your wishes. This can result in unnecessary costs, delays, and disputes among your heirs.

 

Protecting Your Legacy: Essential Asset Protection Strategies for Florida Estate Planning

Estate planning isn’t just about passing on your wealth; it’s about ensuring your loved ones are provided for and your hard-earned assets are shielded from potential risks. For Florida residents, a state with its own unique legal landscape, understanding and implementing effective asset protection strategies is a crucial step in securing your legacy.

 The Common Question: How Can I Safeguard My Assets?

Among the most common questions that arise when discussing estate planning is, “How can I safeguard my assets from creditors, lawsuits, and unexpected financial challenges?” This concern is valid, as life is filled with uncertainties, and proactive measures are necessary to preserve what you’ve worked so hard to build.

 Florida’s Homestead Exemption: A Foundation of Protection

A cornerstone of asset protection in Florida is the homestead exemption. This legal provision shields a portion of your primary residence’s value from creditors, making it off-limits in cases of financial distress. This exemption is especially significant for Florida residents, given the state’s robust protection of homestead property by preventing forced sale of homestead property to satisfy debts or claims; in many cases even after death.

 The Role of Irrevocable Trusts: Enhanced Protection

While the homestead exemption provides substantial protection for your primary residence, what about other valuable assets? This is where irrevocable trusts come into play. These trusts, once established, cannot be easily altered or revoked without the beneficiary’s consent.

One effective asset protection strategy involves placing assets into an irrevocable trust. By doing so, you effectively remove these assets from your personal ownership, making them less susceptible to creditors’ claims. Irrevocable trusts can be particularly advantageous for protecting assets while planning for long-term care and Medicaid eligibility.

 Understanding Florida’s Tenancy by the Entirety

For married couples, Florida offers a unique form of property ownership known as “tenancy by the entirety.” This form of ownership provides asset protection against creditors, as the property is considered to belong to the marital unit rather than individual spouses. Creditors of one spouse typically cannot place liens or execute judgments against property held as tenancy by the entirety.

 Family Limited Partnerships: Asset Protection and Estate Planning Combo

Another effective strategy is the establishment of a family limited partnership (FLP) or a family limited liability company (LLC). This approach allows you to maintain control over your assets while separating ownership from direct control. By gifting limited partnership interests to family members, you retain management control while offering protection from potential creditors.

 Offshore Trusts: A Complex Solution

In some cases, individuals with substantial assets may explore offshore trusts. These trusts are established in foreign jurisdictions known for their strong asset protection laws. While offshore trusts can offer high levels of protection, they are complex to set up and manage, and they involve adherence to international legal requirements.

Transferring Risk with Insurance

Insurance should also be a part of your asset protection strategy. While insurance doesn’t prevent claims from arising, it can provide financial coverage in case the unexpected occurs. Liability insurance, umbrella policies, and long-term care insurance are all tools that can help mitigate potential risks.

 Collaborate with Professionals: A Prudent Approach

Creating an effective asset protection strategy requires a deep understanding of both legal and financial intricacies. Given the complexity of these strategies, collaborating with professionals who specialize in estate planning and asset protection is essential.

 In Conclusion

When it comes to estate planning, protecting your assets is about more than just wealth preservation; it’s about securing your family’s future and maintaining your financial well-being in the face of uncertainties. Whether it’s leveraging Florida’s homestead exemption, utilizing irrevocable trusts, or exploring other strategies, your approach should be tailored to your unique circumstances and goals.

Remember that asset protection is just one facet of a comprehensive estate plan. By working closely with legal and financial experts, you can craft a plan that safeguards your legacy while ensuring your loved ones are cared for and your hard-earned assets remain intact for generations to come.

 

 

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Coronado Law Group - New Smyrna Beach, FL