Elder Law Archives

Contesting a Will: the Role of Undue Influence

More and more often these days, it seems that after a family member or loved one dies, those left behind are unhappy with the way the deceased's estate is to be distributed through their Last Will and Testament. Often, the persons feel that their loved one has been taken advantage of, perhaps due to their vulnerability or for other reasons. When a family member or loved one decides to challenge a Will (or a Trust), one of the most common grounds is based on what is known as "undue influence." Florida has a statute, Section 732.5165, Fla. Stat., which specifically provides that "[a] Will is void if the execution is procured by fraud, duress, mistake, or undue influence."

When an original Will is lost or destroyed...don't panic!

Your father has passed away and after the funeral, you try to locate his Last Will and Testament. You find a photocopy but not the original. You do a quick search on Google and find that in Florida, you need to establish the original Will in order to file a testate probate. Should you panic? In many instances, the answer is "no." In Florida, we have a process where you can "prove up" a lost or destroyed Will.

Establishing a "See-Through Trust" for Your IRA

A traditional IRA is what is considered a "qualified" account. In essence, this means that the account gets special tax treatment---in particular, allowing you to defer taxation until a later date. With these types of accounts, you do not have to withdraw the money all at once. Many advisors refer to this as allowing you to "stretch" the distributions over time. Ultimately, this allows you to reduce income taxes which you must pay.

The Dangers of "Do-It-Yourself" Estate Planning

With all of the resources available today online and elsewhere, many people are tempted to try to do their own estate planning. They may find online forms or software at the local office supply store. Alternatively, they might use one of these online services. But is this a smart and safe way to protect your family and yourself? The answer should be s resounding "no." 

The Dangers of "Do-It-Yourself" Estate Planning

With all of the resources available today online and elsewhere, many people are tempted to try to do their own estate planning. They may find online forms or software at the local office supply store. Alternatively, they might use one of these online services. But is this a smart and safe way to protect your family and yourself? The answer should be a resounding "no." 

What is a Pour-Over Will?

When person establishing a Trust (soemtimes called a "Settlor") does not take the steps necessary to fund the Trust, in most instances a probate will be necessary in order to allow the transfer or liquidation of those assets. This would apply to most assets which are titled only in the Settlor's name and which do not have a beneficiary or a POD designation.

Leaving Out the Best Part: No Residuary Clause in a Will or Trust

The provision in the Will or Trust which designates what happens to the "rest, residue and remainder" of an estate after specific devises are made is sometimes referred to as the "residuary provision" or "residuary clause."Every Will and Trust should include a residuary clause. This is the provision that acts as the "catch all" for all remaining assets or property not specifically distributed. In many estates, the residuary clause is where the bulk of the assets are devised.

What Matters Most to You?

When meeting with estate planning clients, I often start by asking a simple question: "What matters most to you?" Without fail, the answer I get most often is "My family and my loved ones." This simple question and answer goes right to the heart of what we do as estate planning lawyers. We help people plan and prepare to assist their family and loved ones in the event of illness, incapacity, or death.

Use a Lady Bird Deed Very Cautiously

A "Lady Bird Deed" (or more accurately called an "Enhanced Life-Estate Deed") is a type of deed which provides the grantor--i.e. the real estate property owner--with certain rights during life, with the remaining interest going to a named grantee at the grantor's death. The grantee under a Lady Bird Deed receives a "remainder" interest.. This means that the grantee gets title to the property upon the death of the grantor but has virtually no rights during the grantor's life. Florida is one of a list of states that recognize the use of this type of deed.

Common Estate Planning Mistake: Naming as Personal Representative a Nonresident Not Related by Blood or Marriage

When doing basic estate planning, one of the most important instruments to set up is a Last Will and Testament. This allows you to designate beneficiaries, i.e. who will receive your estate assets. The Will also designates the Personal Representative, i.e. who will be in charge of your probate estate. [Note: in some states, this person is referred to as an "Executor" or an "Administrator" but regardless of the name, they are essentially the same position.]

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