I have a Durable Power of Attorney and am considering a TOD that would name the same beneficiaries as in the owners will to the single owners brokerage account.
The answer to your specific question will be determined by the content of the power of attorney, and when it was signed. There was a major change in Florida's power of attorney statute in 2011. If the power of attorney was signed after October 1, 2011, the power of attorney must contain a specific provision in the document that grants the agent the authority to change beneficial ownership or direct ownership of the principal's assets. Without that provision, and the principal's initials in the margin next to the paragraph containing that specific power, the power of attorney does not authorize such action.
If the power of attorney was signed prior to October 1, 2011, then theoretically the agent may have that authority, if it is included in the power of attorney. However, as a practical matter, a third party (the brokerage firm in this case) may choose not to honor the power of attorney. If that happens, there is little recourse to you as the agent to force the brokerage firm to honor the power of attorney because there is no provision in the Florida statute that allows for the agent to force the third party to honor the power of attorney signed before October 1, 2011.
You should consult with an attorney who is experienced in the area of powers of attorney to determine if you actually have the authority to make the change that you have identified, or whether there may be some other alternative to accomplish that result.See question
She just had a bad stroke leaving her unable to talk or make decisions for herself. Her husband can no longer take care of her or himself. I am her only living sibling. Please advice. Thank you
The process of obtaining a guardianship is in two steps. The first is to file a petition with the court seeking to declare the person to be legally incompetent. Upon the court entering an order declaring the person to be incapacitated, a guardian is appointed by the court. The proposed guardian must file a petition to appoint the guardian and must provide information to the court.
Because the guardian is a legal representative of the "ward", it is necessary for the guardian to have legal counsel to represent them in the court proceedings.
There are a number of responsibilities required of a guardian.
Your first step should be to consult with an attorney experienced in guardianship matters.
Good luck.See question
We are closing in on purchasing our 1st rental property and wanted to know what business entity we should form if any and if not right now what threshold should we form a business entity at
My colleagues suggestions regarding LLCs are well placed. There are many operational advantages, possible tax advantages,premises liability limitations, and other benefits of an LLC. The biggest disadvantage is the fact that the LLC changes the character of the ownership so that financing opportunities are more limited, interest rates and insurance may be higher, and you have an annual report that must be filed with the State of Florida every year - with the annual renewal fee.
An often overlooked alternative is Florida Land Trust statute. A land trust has many of the same attributes as the LLC, without some of the negative consequences of the LLC. However, the ownership of a multi-member LLC has slightly better protection from third party creditors than does a land trust .
You should consult with experienced counsel to assist you with choosing the entity and form of ownership that is most appropriate for your particular circumstances.See question
I am a co-trustee on the family trust. The grantor has been determine incapacitated, and to help pay for care other than a nursing home, the other co-trustee wants to sell the house. Am I legally obliged to sell, for the sake of better care for ...
The answer to your question depends on a number of variables. If your mother can qualify for Medicaid, she may be entitled to benefits either through one of the waiver programs for assisted living, or through the Institutional Care Program, if she needs skilled nursing home care. She may also be qualified for benefits under the Aid and Attendance Program, House Bound program or the VA Pension program, if she or her husband were a member of the armed forces during any period of declared conflict during their service.
I strongly encourage you to consult with an experienced elder law attorney as soon as possible to determine which, if any, of these programs she may be entitled to receive benefits. If so, it should be possible to delay temporarily or permanently the sale of the home.
Under Florida law for Medicaid and federal law for Veterans Benefits, the home is a protected asset. If benefits from one or more of these programs may help you provide for your mother's care now, you may be able to preserve the home. But, you must consult with an elder law attorney to determine the level of benefits that she may be entitled to receive, if any.
Good luck.See question
Hello, I am looking for a knowledgeable attorney who is skilled with irrevocable trusts, holding company structures, and estate planning. I am looking to form an irrevocable trust to start. I am looking for an attorney who is proactive and will...
There are many estate planning and asset protection attorneys in your local area who have experience working with irrevocable trusts and multi-tiered structures for the operation of businesses. Different types of irrevocable trusts that you should discuss with the attorney you retain should include intentionally defective grantor trusts, intentionally defective inheritor trusts, qualified domestic asset protection trusts, possibly spousal limited access trusts, and many others.
Holding company structures that you will want to include in your discussion include limited partnerships, limited liability companies, and possibly (but unlikely) the corporation. In today's environment, the limited liability company has many advantages over the use of a corporation, so the use of corporations is for a very narrow range of needs. Depending on your business activities and locations, it may be appropriate for you to consider LLCs established in different jurisdictions, such as Nevada or Wyoming (primarily for asset protection and privacy reasons).
You should evaluate the options that are available in the local area, perhaps interview the 3 or 4 attorneys who appear to be knowledgeable and experienced in the area in which you are seeking representation, and then decide which attorney you want to work with to accomplish your planning objectives.See question
Have an 88 yr old aunt without a will and trying to inform her of what happens should she pass with out one....I understand that it goes to probate but don't know how they find potential family members and is it any blood relative no matter how fa...
When someone dies in Florida, owning assets but without a will, the deceased persons estate must go through probate. The probate judge will appoint a personal representative ("executor") of the estate. The personal representative of the estate must have a Florida attorney representing him or her in the probate proceeding. It is the personal representative's responsibility to determine whether there are any creditors of the deceased person, and to collect all of the assets belonging to the deceased person.
After collecting all of the assets and determining valid creditors, the legitimate creditor who is owed money by the deceased person will be paid from the assets in the probate estate. The personal representative is entitled to a reasonable fee for his or her services, and the probate attorney for the personal representative is entitled to reasonable compensation for services rendered.
All assets remaining after paying creditors, the personal representative and the probate attorney will be distributed to the deceased person's heirs at law, as determined by Florida Statutes, Section 732.101 - 732.106. If the personal representative is unable to locate any of the deceased person's legal heirs, then the remaining assets in the estate escheat to the State of Florida pursuant to Florida Statutes, Section 732.107.
If you aunt is capable of understanding the extent of her assets and other resources, and who are her legal heris, then she may still be competent to sign a will. In the will she can identify the people who she wants to receive her assets upon her death. If she has significant assets, she may want to consider a revocable living trust that may allow her to avoid probate.
I strongly encourage you and your aunt to consult with an estate planning attorney in your locality as soon as possible.See question
My Mother passed away suddenly on April 28th, 2016, my father last year on May 17th. I was always listed as a beneficiary on their bank account. After my Father passed away, since they had a join account, they only removed my Father and only my Mo...
Unfortunately, your only option is a formal probate administration. Since the amount of the account exceeds $75,000, summary administration is not available as an option for you.
You should consult with a local probate attorney to explore your options in the probate court.
Since you are the closest heir, as her daughter, you should have no issue with being appointed as the personal representative of the estate. The formal probate administration should not last more than four or five months, if there are no creditor claims filed.See question
Hello: I have not done any estate planning. I have my investments, checking, and savings payable on death to all of my children. However, my paid off home is not designated to anyone and my wish is to leave it to one child out of my four chi...
It sounds like you're due for an estate planning consultation with an experienced estate planning attorney. Without a will, all of your assets will be distributed to your surviving spouse, if there is one, or if you have children from a previous marriage, then 1/2 to your surviving spouse and 1/2 to your children from the previous marriage. Any asset with a beneficiary designation will be distributed to the named beneficiary. Any asset titled to your and someone else, with right of survivorship, or with your wife as tenants by the entireties, will be distributed to the surviving joint owner.
All of the asset for which there are beneficiary designations or joint ownership will go outright to the named beneficiary or the joint owner, without any protection for them from creditor claims against the beneficiary that may be pending at the time of your death, or potentially subject to claims of divorcing spouses, or if any of those individuals are incapacitated, either temporarily or permanently, their assets may end up in a court supervised guardianship. Another uncertainty is what happens if someone you have named as a beneficiary should predecease you? Where will those assets go?
You also should consider who is to make health care decisions for you when your are unable to communicate to your physicians, and who will be responsible for handling your financial and business affairs in the event you become incapacitated, temporarily or permanently.
You can avoid all of the uncertainty with proper estate planning. You should meet with an experienced estate planning attorney who can assist you with achieving your goals and objectives, and dealing appropriately with your concerns.See question
Will it be too bad if I buy a pre-printed Living Will at Office Depot and fill it out to say I leave everything to my special needs 3 year old son versus having a an attorney write a testament/estate? What would be the difference? I'm really not ...
You have a host of issues that dictate that you consult with an experienced estate planning attorney.
First, a "living will" is a document that relates to end of life decisions, and has no effect on the distribution of your assets at death.
Second, when dealing with a special needs child, there are all kinds of issues that need to be addressed to ensure the special needs child actually benefits from his or her inheritance. I've provided a link to our website discussion of special needs trusts that can be used to ensure a child with special needs can benefit from an inheritance without losing any public benefits the child may be entitled to receive.
Third, when dealing with blended families, there are a number of issues that must be addressed to avoid potential mistakes that can devastate an estate plan.
The needs you have for estate planning exceed your concerns with the value of your estate. Where special needs and blended families are concerned, you have very particular estate planning needs that dictate you consult with an experienced estate planning attorney. Do not try to do this kind of planning without the assistance of an experienced attorney.
Good luck with your planning.See question
the person who wrote the will died recently. large disbursements have been made to other family members with the exception of my brother. there is no provision in the will or codicils denying his rights should he precede will makers demise. are hi...
The answer to your question depends on the language used in the will. Your question also highlights why it is important to work with an experienced estate planning attorney when implementing wills and trusts.
If the language in the will says that your brother is entitled to a distribution "per stirpes" then if your brother predeceases the will maker then his children would be entitled to his distribution, in equal shares for each of his children.
If the language of the will says "per capita" then your brother's share lapses (goes away) if he dies before the will maker.
Even better would be for the will to specifically provide instructions on what happens if a named beneficiary predeceases the will maker.
I suggest that you obtain a copy of the will and meet with an experienced estate planning or probate attorney to determine what rights, if any, your brother's children might have in the estate.
Good luck.See question