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Wills, Trusts & Estate Planning

Trust Distributions to Beneficiaries under a HEMS or Ascertainable Standard

January 13th, 2023

Posted in Asset Protection,Tax Law & IRS Defense,Wills, Trusts & Estate Planning

“HEMS” stands for “health, education, maintenance, and support” and is commonly referred to as an “ascertainable standard”. If there is a HEMS provision in a Trust, the money distributed can only be used for specific needs of the beneficiary related to health, education, living expenses, or other needs or support that a Trustee can ascertain. Some examples include health insurance, surgery, exercise equipment, prescriptions, tuition, career training, rent, mortgage payments, home repairs, taxes, legal fees, vacations, or other reasonable comforts.


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Understand the Risks of Using Beneficiary Designations

November 16th, 2022

Posted in Asset Protection,Wills, Trusts & Estate Planning

Beneficiary designations for your financial assets are helpful in that assets can be transferred quickly to your heirs without waiting for probate of the Estate (and assuming you do not have a Trust). Although this can be a good option, don’t overuse it or use it blindly. Consider these risks before assuming your assets are protected:


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Portability & Timing of Transferring the Estate Tax Exemption to a Surviving Spouse

September 16th, 2022

Posted in Probate & Guardianship,Tax Law & IRS Defense,Wills, Trusts & Estate Planning

An estate tax return (Form 706) must be filed if the gross estate of a decedent, increased by the decedent’s adjusted taxable gifts and specific gift tax exemption, is valued at more than the filing threshold for the year of the decedent’s death. The filing threshold for 2022 is $12,060,000. The threshold is adjusted for inflation and increases each year. An estate tax return also must be filed if the estate elects to transfer any deceased spousal unused exclusion (DSUE) amount to a surviving spouse, regardless of the size of the gross estate or amount of adjusted taxable gifts. The election to transfer a DSUE amount to a surviving spouse is known as the “portability” election.


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Can a Step-Brother that is a Nonresident of Florida Act as Personal Representative?

May 23rd, 2022

Posted in Probate & Guardianship,Wills, Trusts & Estate Planning

Florida law provides restrictions on who can serve as personal representative (i.e. executor of an estate) when that person is not domiciled in or resident of Florida. A common question we receive when drafting a will for a client is whether the client’s step-sibling (or other step-relative) can serve as personal representative even though the step-sibling (or other step-relative) is not a resident of Florida.


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Who Gets My Property If I Don’t Have a Will?

March 14th, 2022

Posted in Probate & Guardianship,Wills, Trusts & Estate Planning

Many people believe that if they die without a will, the state (or government) gets their property.  While this is possible, it is very unlikely to occur.  So, what happens to your property if you die without a will?

When a person dies without a will, they die intestate (whereas dying with a will is called testate).  The Florida Statutes, under Part I of Chapter 732, titled Intestate Succession, presents a hierarchy of classes of people who are to inherit your “intestate estate” if you do not have a will.  That hierarchy is as follows:


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Understanding Death Taxes

February 14th, 2022

Posted in Asset Protection,Probate & Guardianship,Tax Law & IRS Defense,Wills, Trusts & Estate Planning

Many people worry about filing or paying taxes to IRS or the federal government at death. The truth of the matter is that very few need to be concerned. According to IRS data, just 0.15% of decedents needed to file an estate tax return (Form 706) in 2019, and only 0.07% will pay any estate tax. That’s lower than the historical 1% to 2% share. Note there are some states that also have an estate or inheritance tax. Florida is not one of those states.


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Maybe You do Need a Trust – Here’s Why

December 1st, 2021

Posted in Asset Protection,Business & Corporate Law,Probate & Guardianship,Wills, Trusts & Estate Planning

People need an estate plan if they want to ensure that their intentions will be honored after death with respect to the distribution of their assets. If you have an estate plan in place, does it also include a trust (sometimes called a living trust or a revocable trust)? If your current estate plan only consists of a last will and testament, you may want to consider also creating a trust.


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Compensation & Fees for Personal Representatives, Trustees, and Attorneys in Florida Estates and Trusts

September 15th, 2021

Posted in Asset Protection,Probate & Guardianship,Tax Law & IRS Defense,Wills, Trusts & Estate Planning

Under Florida law, the personal representative of an estate (sometimes also called an executor) and the trustee of a trust are entitled to compensation, as are the attorneys who represent the personal representative and trustee.

Compensation of Personal Representative The personal representative is entitled to a commission from the estate assets, which can be calculated using a percentage of the inventory value of the probate estate assets and the income earned during administration. For a formal probate administration, the following table sets forth what amount is deemed to be reasonable compensation:


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