When a client wishes to leave an inheritance to a minor (a person under age 18), the most important advice is to never leave the bequest outright. The same notion is true for someone who is disabled as we recently posted about on our Blog at https://www.jacksonlawgroup.com/asset-protection/the-use-of-supplementalspecial-needs-trusts-in-estate-planning/. The problem with leaving an inheritance outright to a minor is that the court will require the establishment of a guardianship for the minor’s benefit, which can be very costly and overly burdensome.
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Many disabled Americans receive governmental benefits such as Supplemental Security Income and Medicaid to assist in their time of need. These individuals rely on this assistance for supplemental income and medical care expenses (including nursing home care). While governmental benefits assist disabled individuals with covering their expenses, the benefits often cannot cover all expenses. In these cases, family or friends sometimes provide financial support and help cover any remaining expenses. These same family and friends also wish to assist after they pass away so they include the disabled individual in a will or name the disabled individual as a beneficiary of a trust. In this respect, family and friends should be aware of the implications that leaving assets or money in the form of a gift or bequest to a disabled person as it relates to current or future needs for governmental benefits. In other words, family and friends should be aware that their generosity in the form of a gift or bequest may also affect the eligibility of a disabled person for governmental benefits.
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Posted in Asset Protection,Business & Corporate Law,Probate & Trust Administration,Real Estate Law,Tax Law & IRS Defense,Wills, Trusts & Estate Planning
The attorney-client privilege is one of the most important legal protections that an individual or entity has when seeking legal advice from a Florida attorney. Section 90.502(c) of the Florida Statutes states that communication between an attorney and a client is confidential if it is not intended to be disclosed to a third-party other than when the communication to a third-party is made in the furtherance of legal service to the client or when the use of a third-party is reasonably necessary for communication between the attorney and client. It is important to note that there are exceptions that may apply, such as when the attorney’s services are sought to enable what the client knows to be a crime or fraud. The purpose of the statute is to protect almost all information disclosed by the client. However, this protection can be waived and subject to disclosure if third-parties are involved in the communication. Moreover, Section 90.507 of the Florida Statutes provides that the attorney-client privilege is waived when a confidential matter is voluntarily discussed in a manner where a reasonable expectation of privacy does not exist. Examples may include copying a third party to an email to your attorney, forwarding an email from your attorney, including a friend in a meeting with your lawyer, or encountering your lawyer at a public venue with other people listening to the conversation and discussing your case.
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Whenever discussing a client’s plan for addressing lifetime or death transfers (including an involuntary transfer or loss to a creditor), asset titling is critical and often the most overlooked aspect of developing a strategy. The manner in which an asset is titled determines how it can be disposed of. Recently, I encountered a married couple who thought their Wills and Trusts provided for their intent that each spouse receive the other’s property for life in trust after the first spouse’s death and then ultimately to their children from a prior marriage. Come to find out, almost every asset was titled jointly or had a spousal beneficiary designation on it. Thus, the asset would pass not pursuant to their Wills or Trusts on the first spouse’s demise but by per operation of law. This is just one example of why asset titling is so important.
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Posted in Asset Protection,Probate & Trust Administration,Real Estate Law,Wills, Trusts & Estate Planning
A land trust is “an express written agreement or arrangement by which use, confidence, or trust is declared of any land […] under which the title to real property […] is vested in a trustee.” Fla. Stat. § 689.071. It is an average tool at keeping property ownership partially concealed from prying eyes, but it does not generally offer great asset protection from creditors. Most land trusts are self-settled trusts. Self-settled trusts are trusts that are formed by the property “owner” for the benefit of the same. Self-settled trusts typically offer little to no asset protection for the property “owner”/beneficiary. When a creditor properly seeks, through the discovery process promulgated by the Florida Rules of Civil Procedure, disclosure of property that the beneficiary has an interest in, the beneficiary will usually have to disclose the land trust property. Once disclosed, the property of the self-settled land trust may be subject to the creditor just the same as if the property were held individually by the owner. Many attorneys maintain that land trusts offer little to no asset protection and are simply a facade giving the illusion of protection while providing the benefit of limited privacy.
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