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Estate Planning Basics

When you think of the words “estate planning,” what comes to mind? Many people associate estate planning with creating a last will and testament. While wills are an integral part of the process for many people, there are several other types of legal documents and services that also fall under the estate planning umbrella. In addition to wills, estate planning also encompasses various types of trusts, asset titling, beneficiary designations, and advance directives for health care and finances. Depending on your circumstances and goals, your plan may involve some – or even all – of these tools. In this article, we will explore each of these items in more detail. 

Wills

Creating a will allows you to direct the distribution of assets that pass through your probate estate. Essentially, your will controls assets you owned in your name alone at the time of your death, without a joint owner or beneficiary. Your will is also the document you can use to name a trusted family member or friend as your Personal Representative (also commonly referred to as the “Executor.”) 

Your personal representative is responsible for handling your estate when you die, safeguarding property and other estate assets, paying valid debts, and distributing remaining assets to your named beneficiaries.  While acting in this capacity, your personal representative must follow applicable state laws and adhere to the terms of your will.  

It is important to understand that assets passing through your will may be subject to probate administration when you die. Contrary to popular belief, creating a will does not eliminate the need for probate. 

Trusts

Trusts are another popular estate planning device. There are several different types of, and uses for, trusts. Trusts can be revocable or irrevocable. With a revocable trust, the person creating the trust can change its terms or revoke it entirely during their lifetime. Irrevocable trusts, in contrast, cannot be revoked or altered, except in very limited circumstances. Trusts can also be “living,” meaning the trust instrument is created and maintained during the grantor’s lifetime, or “testamentary.” A testamentary trust can be created inside a will, and can spring into being after the person who created the will dies. This is a common type of trust when someone wants to leave assets for minor children or other beneficiaries who may not be financially responsible. 

The most popular type of trust is the revocable living trust. A revocable living trust can be used to manage and distribute assets and property in place of a will. There are several reasons someone might consider creating and using a living trust in place of, or in conjunction with, a will. Assets owned outright by a trust, including assets that pass directly to the trust at death by way of beneficiary designations, are not subject to probate administration. This means those assets avoid the potential public scrutiny, expense, and delays often associated with probate. If you create and fund a revocable trust but later become incapacitated, your named trustee can also seamlessly manage your finances without needing to establish a guardianship through the court. 

While assets passing through a will are generally distributed outright to estate heirs according to the terms of the will, trusts allow for assets to be managed and disbursed to named beneficiaries over a period of years or even for the beneficiaries’ lifetimes and beyond. The trust provisions guide the trustee’s actions, giving the trust creator the ability to control from beyond the grave and leave a legacy that can impact future generations. 

Trusts can also be used to manage assets for beneficiaries with special needs, in blended families where spouses want to provide for children from previous relationships while still protecting each other’s interests, for estate tax planning, charitable gifting, and more. 

 

Asset Titling

Another component to the estate planning process is a review of how your assets are titled. This includes assets like real estate, automobiles, campers, boats, trailers, investments, bank accounts, and others. 

It is important to know whether you own assets outright in your individual name, jointly with someone else, in a business entity under your control, or inside a trust, as each form of ownership could impact your estate plan in different ways. 

As mentioned above, assets you own in your name alone when you die, without a beneficiary, will pass through your will. If you own property with someone else held as “tenants in common,” your share of that asset will pass through your will. However, if you own property with your spouse as “tenants by the entirety,” or with someone other than your spouse as “joint tenants with rights of survivorship,” then when one owner dies, the property will pass to the other joint owner outside of probate court. Your will or trust does not control this type of jointly-owned property.

Similarly, property owned by a corporation, partnership, or LLC you own or participate in will be subject to the business’s operating agreement or other governing documents. Depending on how the property is structured and whether you have entered into “buy/sell” agreements with others, your share may or may not be subject to probate administration. 

If you create one or more trusts through the estate planning process, your attorney can help you review your assets, make recommendations about retitling assets into the name of the trust, and will provide guidance to help you through the process. This step, also referred to as “funding” your trust, is critical in ensuring your estate plan functions the way you want it to. 

Beneficiary Designations

There is a common misconception that your will or trust automatically controls all of your assets. However, assets for which you named one or more beneficiaries will pass outside of your estate planning documents. This includes life insurance policies, annuities, retirement accounts like 401(k)s and 403(b)s, investment accounts with a TOD (transfer on death) designation, bank accounts with a POD (pay on death) designation, and real estate where you hold a life estate but have named someone else as a remainder beneficiary at your death.

If you name someone as a beneficiary of an account, policy, or other asset but later change your mind about who should inherit the asset, it is critical to update your beneficiary designations. Updating your will alone does not change the life insurance company or financial institution’s contractual obligation to distribute the funds to the persons or organizations named on the beneficiary designation on file.

If you create a trust, your attorney may recommend updating beneficiary designations to point assets toward your trust when you die, to streamline administration and provide for liquidity to pay debts and other expenses. In some cases, however, it may be preferable to name beneficiaries directly. Your attorney can help guide you and make recommendations based on your situation. 

Powers of Attorney

Estate planning also includes planning for periods of lifetime incapacity. The Personal Representative named in your will does not have any authority to manage your finances, access information about your accounts or other assets, or pay your bills during your lifetime; their role doesn’t start until after your death. 

Creating a durable power of attorney allows you to name a trusted family member, friend, or professional fiduciary who can step in to handle your financial affairs if you are alive but no longer have the capacity to manage things yourself. By planning ahead and creating a power of attorney, you can eliminate the need for someone to establish a court-ordered guardianship. 

Health Care Advance Directives

Another aspect to consider during the estate planning process is giving someone else legal authority to make health care decisions for you, if you reach a point where you cannot voice your own wishes for your care. 

An advance health care directive allows you to name someone as your agent, giving them authority to speak for you and to carry out your wishes. You can also use this legal document to specify things that are important to you, providing a written guide to help your health care agent act in a way that aligns with your goals and values. 

Choose a Skilled Estate Planning Attorney Can Help with Your Estate Planning Needs

As you can see, estate planning involves much more than wills alone. Working with an experienced, knowledgeable estate planning attorney is the best way to ensure your plan is tailored to meet your needs and goals. 

The Judy-Ann Smith Law Firm in Jacksonville specializes in probate, estate planning, and family law matters. To learn more about how we help clients protect their loved ones through proactive planning, and to schedule a consultation to begin or update your estate plan, contact us today. 

Wills and Trusts in Estate Planning

It’s never easy to consider a world in which you are no longer present, but this process is critical for the protection of your legacy — and for the wellbeing of your loved ones. Equipped with a will, you can enjoy greater peace of mind in knowing that your wishes will be carried out.

 What Is a Will?

A will is an essential estate planning document that allows you to highlight your wishes for your property and the care of your minor children. Wills can vary dramatically from one person to the next, but all share the purpose of clarifying your intentions for the future.

 What Can Be Included in a Will?

Wills are among the most versatile estate planning documents. Each is tailored based on the unique preferences of the estate holder. A few of the most common elements included in wills are highlighted below:

 Guardianship Designation

If your children are still minors, it is crucial that you determine who will care for them if you pass away before they reach legal age. This can be highlighted in your will, but you’ll also want to discuss the prospect of guardianship with the selected individuals well in advance.

 Overview of Assets

Every will should contain a thorou

gh list of assets that you currently possess. This should include not only property that holds significant monetary and personal value, but also items that seem of little consequence or will ultimately be handled through other estate planning methods.

 Identities of Beneficiaries

Who will inherit your property after you die? Known as beneficiaries, these individuals or organizations should be highlighted in your will. Additionally, your will should reveal which beneficiaries will receive which items or how the monetary value of your property will be divided among them.

 Personal Representative (Executor) Selection

Your will should include a personal representative commonly known as an executor, who will be responsible for administering your estate and following all instructions your will contains after you die. This person should be trustworthy and highly competent. Select somebody who is willing to take on this important role — and provide ample notification to avoid surprises down the road. 

 

Why Are Wills So Important?

No matter how old you are or how much property you possess, you can benefit from drafting and executing a will. Without this critical document, you risk all kinds of unforeseen consequences. Chief among these: your property may not be granted to your beneficiaries as you see fit.

If you pass away prior to completing a will, your situation will be deemed ‘intestate.’ Essentially, this means that the distribution of your property will happen according to the laws of the state. In all likelihood, this will not occur according to your preferences.

A will can prove valuable even if you are not particularly worried about what happens with your property after you pass away. While the state is technically responsible for cases involving intestate individuals, a lack of clear directions can prompt its fair share of drama among family members, who may disagree adamantly as to how you would have wanted property distributed or other critical matters handled. A detailed will removes all doubt, thereby making it easier for loved ones to get along during a difficult time. 

While the specific stipulations highlighted in your will are important, you may ultimately discover that designating your personal representative delivers the most peace of mind. Once you’ve chosen a trustworthy personal representative, you can rest assured, knowing that your estate lies in capable hands. 

 How We Can Help You Complete Your Will

The process of creating a will can be complicated and an attorney can provide valuable advice and guidance every step of the way.

Top reasons for working with an estate planning lawyer to complete your will include:

  • Ensuring compliance with all applicable state laws regarding wills.
  • Ensuring compliance for all applicable tax laws at the federal and state levels.
  • Handling complications related to business ownership, retirement accounts, and other unique factors that may prove difficult to navigate on your own.
  • Assisting with guardianship designation or other family matters. For example, your lawyer can advise on practices for designating guardianship or beneficiaries if you have children from multiple relationships.

No matter how complicated or simple your estate may seem, you can benefit from the assistance of a skilled attorney. When you work with us, you will receive personalized support from a legal advocate who truly cares about you and your loved ones. There is no need to navigate this complicated process on your own — we are happy to help!

Trusts in Estate Planning

When it’s time to complete or update your estate plan, one tool you may want to consider is a trust. Trusts serve a variety of purposes and offer several benefits when compared to wills and other estate planning devices.

The Judy-Ann Smith Law Firm provides customized, professional estate and trust planning services, including drafting revocable and irrevocable trust agreements designed to help Floridians meet their goals for managing and distributing their wealth.

Understanding Trust Basics

At a basic level, a trust is a way to transfer ownership of assets either during your lifetime or after your death. In doing so, the person creating the trust (the “grantor,” “trustor,” or “settlor”) transfers control to a trusted individual or professional, called the “trustee.” The trustee is responsible for following the terms spelled out in the trust agreement.

The most common type of trust is a revocable living trust, sometimes simply called a “living trust” or an “inter vivos trust.” With this type of trust, the grantor and the trustee are often the same person during the grantor’s life. But, if the grantor becomes incapacitated or dies, the trust agreement names one or more successor trustees who can step in seamlessly to continue administering trust assets.

Why Consider a Trust?

Trusts offer several potential benefits, both to the people who create them and to their loved ones:

  • Avoid guardianships. By providing for ongoing management and trust administration throughout the grantor’s lifetime, trusts can avoid the need for court-ordered guardianships if incapacity strikes.
  • Probate avoidance or minimization. Assets that are owned by a trust also generally pass free from probate court when someone dies. This means those assets can be distributed faster and without the time, hassle, and expense that probate court can bring.
  • Asset management. Trusts are a popular planning tool for people who are concerned about their beneficiaries’ abilities to manage an inheritance. Inheriting through a will generally means beneficiaries receive lump-sum distributions. In contrast, trusts can be used to manage and distribute assets for years — or even the beneficiaries’ entire lifetimes — after the grantor’s death.
  • Protect beneficiaries’ interests. Many people use trusts as part of a strategy to help ensure their beneficiaries will receive their intended inheritance. People who want to protect both a current spouse and descendants while also providing for descendants from previous relationships can use trusts to do so.
  • Tax planning. If your estate could be subject to estate or generation-skipping transfer taxes when you die, using one or more trusts could help minimize the taxes your loved ones will pay. Life insurance trusts can also create liquidity to pay those taxes.

Different Trusts Serve Different Functions

Trusts can be revocable or irrevocable. With a revocable trust, the grantor reserves the right to amend the trust in part or in whole, or to revoke it entirely during his or her lifetime. Revocable trusts are an extremely versatile and flexible planning option, letting the grantor retain complete control over trust assets.

Irrevocable trusts, in contrast, cannot be changed and assets transferred to an irrevocable trust are no longer considered the grantor’s assets. In this way, irrevocable trusts may help lower the tax burden when someone dies.

It is also possible to create a trust inside of a will. When you do so, it is referred to as a “testamentary” trust. With a testamentary trust, you don’t actually have a trust in place during your lifetime. Instead, you create the framework for that trust inside your will, but the trust does not spring into being until after your death. This is a common tool used for parents planning to protect their minor children in cases where a separate revocable trust does not make sense.

The Judy-Ann Smith Law Firm Can Help You Evaluate Options and Implement Solutions

As you can see, trusts serve many purposes. Of course, there is no one-size-fits-all solution for estate planning. While trusts are fantastic additions to some people’s estate plans, they do not make sense for everyone. The best way to determine whether or not a trust should be part of your overall estate plan is to schedule a consultation with a skilled, knowledgeable estate planning attorney.

At the Judy-Ann Smith Law Firm in Jacksonville, we know that your estate planning needs and goals are as unique as you are. We will work with you to create a plan designed to achieve those goals. To learn more about trusts and why you may want to consider one, contact us today.  

Know Your Rights: A Guide to Family Law in Florida

Know Your Rights: A Guide to Family Law in Florida

 

Ending a marriage, trying to establish support, and sorting out custody of your children is stressful under the best of circumstances. That stress is often aggravated by uncertainty. Your own family law attorney will be the best source of information about Florida family law and how it applies to your situation. But, if you’re just starting out and haven’t connected with an attorney yet, this guide will give you a general overview of your rights and some of the most common family law issues.

Florida Divorce / Dissolution of Marriage

 

In Florida, the process most people think of as “divorce” is actually called “dissolution of marriage.” For purposes of this overview, we’ll use these two terms interchangeably, since the Florida statute says “dissolution,” but most people are familiar with “divorce.”

In simplest terms, to divorce is to legally end your marriage. But, most divorce cases involve more than dissolving the marriage. Common issues addressed in a divorce case include child custody, child support, alimony, division of property, and division of responsibility for debts. 

Florida Divorce Basics

 

Who Can Get Divorced in Florida?

 

A Florida court has jurisdiction to hear a divorce case if one of the parties to the divorce proceeding has resided in the state for at least six months prior to the filing of the petition. The court must also have jurisdiction over the person who didn’t file the case. This can sometimes present a hurdle if the other party does not live in Florida, especially if he or she never lived in the state or the couple has been separated for a long time and the other party has no recent ties with the state. If the couple lived in Florida during the marriage and the departure of the non-filing spouse is recent, jurisdiction can usually be established. 

What are the Grounds for Divorce in Florida?

 

Florida does not recognize grounds for divorce such as adultery or cruelty. Rather, nearly all Florida divorces are filed on the grounds that the marriage has been irretrievably broken. That’s just a technical way of saying that the relationship can’t be fixed. This type of divorce is often called “no-fault divorce,” because neither party has to prove that the other one did anything wrong.

The only other ground for divorce Florida law offers is mental incapacity of one of the parties. Seeking a divorce on the basis of mental incapacity requires an adjudication, the passage of time, and a more complicated process that includes service on the guardian of or nearest blood relative to the incapacitated person.

Contested v. Uncontested Divorce

 

An uncontested divorce is typically more efficient, less stressful, and less expensive than a contested divorce proceeding. However, to proceed with an uncontested divorce, the parties must have reached an agreement on every issue, including: 

  • Division of property
  • Responsibility for debts
  • Child Support
  • Alimony / spousal maintenance
  • Child custody and visitation 

Of course, that doesn’t mean that you and your spouse have to anticipate every possible issue and work out the details on your own. Your divorce attorney will walk through the issues with you and, if necessary, can negotiate any remaining issues on your behalf and draft an agreement that protects your rights. 

Many people ask whether they can handle an uncontested divorce without an attorney. You’re not required to be represented by an attorney. There are many resources available for people who are considering a self-help approach to the Florida divorce process. However, there are two clear benefits to working with an experienced family law practitioner. First, it’s easy to overlook issues, and that can lead to big problems down the road. Second, family court procedures, technical requirements and timelines can be overwhelming. 

In certain cases, divorcing couples who have resolved all of the issues between them may be able to take advantage of the “Simplified Dissolution of Marriage” process. The simplified process is available to couples filing for uncontested divorce if: 

  • They both agree to use the process, and that the marriage is irretrievably broken
  • They have no minor children (natural or adopted) and neither is pregnant
  • They have agreed on the division of debts and assets
  • Neither party is requesting alimony

On the other hand, if there are contested issues–issues the parties can’t agree on–the court will schedule a hearing. Each party will have the opportunity to call witnesses and present evidence so that the judge can make a determination on the outstanding issues. This process is generally more time consuming and more expensive, and can be more stressful than an uncontested divorce. However, sometimes it is necessary to protect your rights and the best interests of your children. Your Jacksonville family law attorney can help you weigh the issues and determine when it may be beneficial to compromise and when it is in your best interest to proceed with a contested hearing.

Core Issues in Florida Divorce Cases

 

Property Division and Responsibility for Debt

 

If the parties don’t reach an agreement about who gets what in a Florida divorce case, the Florida divorce court will make an “equitable division” of assets and liabilities. While many people assume that this means a 50/50 division of both property and responsibility for debts, that isn’t necessarily true. The court must start with a presumption that equal division is equitable. But, Florida law also provides a list of factors that may warrant a different result, including: 

  • The length of the marriage
  • The contributions of each party
  • Any interruption of career or education
  • The financial circumstances of each party
  • Waste or destruction of assets by either spouse leading up to the divorce
  • The desirability of keeping the children in the marital residence

The law also allows the family court judge to consider any other factors impacting “equity and justice.” 

It’s important to note that only marital assets and liabilities are divided by the court. While conflicts may occasionally arise about whether a debt or asset is of the marriage, but property will typically be considered marital if it was acquired during the marriage, even if it is titled to just one spouse. The same is true for personal debts incurred during the marriage.

Child Custody and Visitation

 

The goal of a Florida court in approving or creating a parenting plan is to serve the best interests of the children. Depending on the circumstances, the court may order parenting time and responsibilities shared, or may assign sole parenting responsibility to one parent. 

Some of the key factors impacting this decision include: 

  • The willingness and ability of each parent to foster a good relationship between the child and the other parent
  • The willingness and ability to put the needs of the child first
  • Caretaking responsibilities each parent has traditionally assumed
  • Continuity of living arrangements
  • Geographic issues, such as travel time between the two homes
  • Moral fitness of each parent
  • Mental and physical health
  • Preferences of the child, if the court deems the child mature enough to express a meaningful preference
  • How informed each parent is about the child’s life, friends, schooling, medical care, etc.
  • The ability to provide consistent routines for the child

Of course, any potential threat to the child, such as a history of domestic abuse, drug and alcohol abuse, or violence may also be considered. And, the court has the discretion to consider any other relevant factor. 

A parenting class is required for all divorcing Florida couples who have minor children. This course is intended to help parents co-parent as they separate, and to minimize the impact of divorce on the children. 

Parental Relocation

 

A parent who wants to relocate with a child--that is, to move more than 50 miles from his or her current residence–must get permission from the court. There are two ways to approach this. First, the parent wishing to relocate can enter into an agreement with the other parent. This type of agreement must include plans for any necessary adjustment to parenting time and travel arrangements. 

If the other parent doesn’t agree, the parent who wants to relocate can file a petition with the court seeking permission to relocate. If the other files a timely response objecting to the move, the court will schedule a hearing. However, if the other parent doesn’t respond by the deadline, the court may grant permission to move without a hearing.

Child Support

 

Florida child support is calculated using an income shares model, which means that the parents’ income is combined to determine a base rate of child support, and then pro-rated based on how much of the total income each parent has. However, several other factors impact the amount of child support due, including which parent pays for medical insurance, how much the medical insurance premium for the child is, and how much time the child spends with each parent. 

For more detailed information about the Florida child support calculation, see “How is Child Support Calculated in Florida?” or talk with an experienced Jacksonville, Florida child support lawyer. 

A Note about Paternity

 

While issues of child custody, relocation, and child support arise most often in divorce cases and post-divorce modification proceedings, they may also arise in paternity cases. 

When a child is born to unmarried parents, the parents can voluntarily establish paternity by completing a Paternity Acknowledgment form. If paternity isn’t established this way, either parent can initiate a court proceeding to establish paternity. Once paternity is established, issues such as parenting time and child support may be determined through a process similar to the one described above. 

Alimony

 

Florida law allows for four different types of alimony:

  • Bridge-the-gap alimony, designed to help with short-term, transitional needs, and may be granted for a period of up to two years; 
  • Rehabilitative alimony, intended to help one party become self supporting through a developed plan involving education, training, or acquisition of experience; 
  • Durational alimony, which provides financial assistance for a set period of time, rather than permanently; and
  • Permanent alimony, which may be awarded after a marriage of long duration if one party lacks the ability to meet his or her own financial needs
  • Alimony pendente lite; suit money—In every proceeding for dissolution of the marriage, a party may claim alimony and suit money in the petition or by motion, and if the petition is well founded, the court shall allow a reasonable sum therefore. If a party in any proceeding for dissolution of marriage claims alimony or suit money in his or her answer or by motion, and the answer or motion is well founded, the court shall allow a reasonable sum therefore.

Whether alimony is awarded, the type of alimony, and the amount and duration depend on a variety of factors, including the standard of living of the couple during the marriage, the length of the marriage, and the earning capacity of each spouse.

Take Charge of Your Florida Family Law Case

 

Whether you’re considering filing for divorce, have been served with divorce papers, or need to modify your child custody or support order, the best first step is to learn more about your rights and what you can expect. 

Jacksonville family law and child custody lawyer Judy Ann Smith understands how stressful divorce and other family law issues can be, and wants to make it as easy as possible for you to get the guidance you need. That’s why the firm offers flexible consultation options, including video conferencing, phone consultations, and after-hours appointments.

You can schedule yours right now by calling 904-733-9080 or filling out the contact form on this page.

How is Child Support Calculated in Florida?

mom and child calculating

Child support is a critical issue for both parents, since child support obligations impact not only the parents’ ability to provide for the child, but also the income available for living expenses for each parent as they establish separate households. Fortunately, Florida child support is generally predictable, meaning that an attorney experienced with child support calculations can give divorcing parents a good idea of what to expect.

While it’s a natural impulse to go looking for an online child support calculator, accuracy varies. Most calculators are programmed to give a quick, general idea of the child support obligation, but can’t take all variables into account. With considerations like health insurance, split parenting time, and special needs in play, the calculation can get complicated. And, you may not know what the time-share split will be, or who will be responsible for various direct expenses when you’re initially considering divorce. So, it’s generally best to talk to an experienced child support lawyer to ensure that you’re getting the best information available.

The Basic Florida Child Support Formula

The base formula for calculating child support in Florida begins by combining the parents’ incomes. Then, the combined monthly income is used to determine the total amount of support due a child or children each month. This is commonly known as the “income shares model.” 

Note that for child support purposes, “income” is not limited to earnings from work. The child support calculation also takes into account income such as:

  • Bonuses and commissions
  • Disability, workers’ compensation and Social Security benefits
  • Unemployment insurance income
  • Pension and other retirement income
  • Business or self-employment income
  • Income from a trust or investments

For combined monthly incomes between $800 and $10,000 and families with one to six children, this number is found on the Florida Child Support Guidelines Chart. For example, a couple with a combined monthly income of $4,500 and two children would have a base monthly child support obligation of $1,423. But, that doesn’t mean one parent will be paying the other $1,423. Instead, that number represents the amount that the two parents together are expected to contribute to the child’s support. 

The next step is to determine the percentage of total monthly income attributed to each parent. If, for example, one parent in the example above earns $3,000/month and the other $1,500/month, then the higher-earning parent has 66.67% of the income and the lower-earning parent earns 33.33% of the total.

Without any additional considerations, that would mean that the higher-earning parent was responsible for ⅔ of the $1,423 ($949.15) and the lower-earning parent ⅓ ($473.85). The custodial parent would provide his or her support to the children directly, and the non-custodial parent would pay the amount of his or her obligation to the custodial parent. So, in our case, if the children lived with the lower-earning parent, the higher-earning parent would pay the lower-earning parent $949.15 per month in child support. 

For most parents, though, there are other variables in play.

Additional Support

 

Though the chart provides the base amount of support due the children from both parents, some expenses are added to the base child support obligation. These include: 

  • Monthly child care costs 
  • Monthly health insurance cost (for the children only)
  • Monthly medical, dental and medication costs not covered by insurance

The total of these additional costs is also multiplied by the percentage attributed to each parent and added to the base obligation. So, for example, if one parent pays $500/month for child care and the other pays $500/month for medical insurance for the children, $1,000 will be added to the total obligation. Then, that $1,000 will be split: ⅔ ($666.67) will be added to the higher-earning parent’s support obligation, and ⅓ ($333.33) will be added to the lower-earning parent’s obligation.

That brings our totals from the example above to $1,615.82 for the higher-earning parent and $807.18 for the lower-earning parent.

Of course, each parent is already paying one of these expenses. In the next step, these costs are deducted from the obligation of the parent actually making the payments. In our case, that means $500 will be deducted from each parent’s obligation, leaving the higher-paying parent with an obligation of $1,115.82 and the lower-earning parent with an obligation of $307.18.

If there are no extraordinary circumstances that warrant the court deviating from the Florida child support guidelines and the children are with one parent at least 80% of overnights during the year, then the parent with fewer than 20% of overnights pays the amount above to the parent with whom the children spend most nights. 

The Impact of Shared Custody on Child Support

The growing trend in Florida and around the country is for parenting time to be more evenly shared between parents. It’s generally believed that more balanced parental involvement is good for children, and Florida child custody laws aim to foster positive relationships and regular interaction with both parents. But, that shift in balance often means the standard child support calculation won’t yield a fair result, and may put too much of the financial burden on one parent. 

When there is substantial time sharing, Florida uses a slightly different method to calculate child support. This alternative approach is known as the “gross up method.” For purposes of Florida child support calculations, “substantial time sharing” means that each parent has the children at least 20% of the overnights in a year, or at least 73 nights per year. 

Because the gross up method generally lowers the amount of money actually changing hands in child support, your child custody lawyer may encourage you to consider this issue when creating a time-sharing schedule. For example, if your children stay overnight with their other parent every other weekend and for two weeks during the summer, the aggregate overnights will be 66, and the standard formula will be applied. But, if that summer visitation is increased to three weeks and the kids are with your ex for spring break, it doesn’t just reduce your child support in proportion to those days–the whole formula changes. 

The Gross Up Method

Using the gross up method, the base child support obligation is increased by 50%. That means the $1,423 obligation our parents above shared would be increased to $2134.50. The obligation would be split based on percentage of income, as it was in the basic calculation. That means the higher-earning parent’s obligation would increase to $1423.71–more than the total obligation in the original calculation. The lower-earning parent’s obligation would increase to $719.79. 

Then, shares would be adjusted based on the percentage of overnight stays with each parent. If the children spend 100 nights with the higher-earning parent and 265 nights with the lower-earning parent, the percentage split is 27.4% to 72.6%. Each parent’s support obligations is multiplied by the other parent’s percentage of overnights.

So, the lower-earning parent’s obligation of $719.78 is multiplied by the higher-earning parent’s 27.4% of overnights, and the lower-earning parent’s obligation becomes $197.21. The higher-earning parent’s obligation of $1,423.71 is multiplied by the lower-earning parent’s 72.6% of overnights, and the higher-earning parent’s obligation becomes $1033.61. 

With this method, there is one additional step: the obligations are offset. So, the lower-earning parent’s $197.21 obligation would be deducted from the higher-earning parent’s $1033.61 obligation, and the higher-earning parent would pay $836.40. (Note that, to avoid making the example overly complicated, I have not included the health insurance and child care expenses referenced above in the calculation. These items would be incorporated into the calculation in the same way they were factored into the income shares calculation.)

The difference between the income shares result and the gross up result isn’t too significant here, because one parent has the majority of overnights. The closer to equal the number of overnights gets, the greater the impact on the amount of child support actually changing hands. 

Deviation from the Florida Child Support Guidelines

A Florida judge has the authority to deviate from the child support guidelines by up to 5% in either direction. The court may deviate to a larger degree only upon written findings of reasons for the deviation. Some justifications for deviation may include special needs of the child, unusually high medical expenses, non-income resources of either parent, and direct contributions by the paying parent that are larger than would be expected based on the percentage of overnights. 

Florida child support calculations can be complicated, and determining how much child support one party may be required to pay often requires information about other aspects of the divorce case, such as how parenting time will be shared and whether or not one party will be receiving spousal support. Attorney Judy Ann Smith has devoted her career to helping people navigate difficult life experiences associated with family law, and she can help you understand your options and make good decisions for your future and your children’s futures.

You can schedule an initial consultation right now by calling (904) 733-9080.

Must Have Requirements Of A Florida Divorce

Jurisdiction – The Residency Requirement

To obtain a divorce in Florida a person must meet certain jurisdictional requirements. Required is that at least one party seeking the divorce must have resided in Florida for at least 6 months prior to filing of the petition for dissolution of marriage. The Florida statute residency requirement is as follows: “Residence requirements —To obtain a dissolution of marriage, one of the parties to the marriage must reside 6 months in the state before the filing of the petition” Florida Statute 61.021. Therefore, at least one party must meet the residency requirement of the statute in order for a Florida court to have jurisdiction over the divorce proceedings. If the party filing for divorce is a non-resident of Florida, then they may use the residency status of the other party as a resident of Florida to file for divorce in the state Florida.

Residency means an actual presence in the state along with the intention to remain in the state. Florida statute 196.012(17) – “Permanent residence” means that place where a person has his or her true, fixed, and permanent home and principal establishment to which, whenever absent, he or she has the intention of returning. A person may have only one permanent residence at a time.”

Whether a party meets the residency requirement must be corroborated and may be satisfied by valid Florida driver’s license, Florida voter registration card, Florida identification card or testimony or affidavit of third party.

“Based on the evidence at the hearing, which evidence need not be corroborated except to establish that the residence requirements of s. 61.021 are met which may be corroborated by a valid Florida driver license, a Florida voter’s registration card, a valid Florida identification card issued under s. 322.051, or the testimony or affidavit of a third party,”

Florida Statute 61.052(2)

Grounds for Divorce

In addition to the residency requirement there is also the grounds for divorce requirement, the marriage must be irretrievably broken or mental incapacity of one of the parties. Florida is a no-fault divorce state and by the Florida Statute only two grounds for a divorce exist in Florida and they are:

(1) No judgment of dissolution of marriage shall be granted unless one of the following facts appears, which shall be pleaded generally:

(a) The marriage is irretrievably broken.

(b) Mental incapacity of one of the parties. However, no dissolution shall be allowed unless the party alleged to be incapacitated shall have been adjudged incapacitated according to the provisions of s. 744.331 for a preceding period of at least 3 years.

Florida Statute 61.052(1)

It is not necessary for both parties to agree that the marriage is irretrievable broken, only one party needs to want to end the marriage. However, the Court may order up to a maximum of 3 months of counselling to allow the parties time to reconcile, if there are minor children or if only party wants the divorce.

When there is a minor child of the marriage, or when the responding party denies by answer to the petition for dissolution that the marriage is irretrievably broken, the court may:

1. Order either or both parties to consult with a marriage counselor, psychologist, psychiatrist, minister, priest, rabbi, or any other person deemed qualified by the court and acceptable to the party or parties ordered to seek consultation; or

2. Continue the proceedings for a reasonable length of time not to exceed 3 months, to enable the parties themselves to effect a reconciliation; or

3. Take such other action as may be in the best interest of the parties and the minor child of the marriage.

Florida statute 61.052(2)(b)

Meeting the residency requirement of 6 months as a Florida resident and the grounds requirement of the marriage being irretrievable broken or mental incapacity are a must to obtain a Florida divorce.

If you are considering filing for divorce in Florida, you should contact an experienced family law attorney. The Judy-Ann Smith Law Firm is available to assist with divorces, custody, and support modification throughout the Jacksonville and surrounding areas. Call (904) 733-9080 or complete our online contact form to get the guidance you need today.

The experienced team at the Judy-Ann Smith Law Firm will be your advocates and work diligently to get you through the divorce process.

Estate Planning for Physicians – Your Complete Guide

doctor working on computer

While nearly everyone can benefit from estate planning, physicians have unique needs. It’s important for doctors and their families to plan deliberately for the orderly management and distribution of estate assets and liabilities during periods of lifetime incapacity and at death. In addition to considerations about who will get what and who is in charge of the process, physicians face additional challenges including ever-present litigation risk from malpractice lawsuits, heavy student loan debt, and the complexities that come with owning or otherwise being associated with a medical practice.

Benefits of Creating a Tailored Estate Plan

Your estate plan, when tailored to your personal situation, goals, and objectives, should provide you and your loved ones with valuable peace of mind. For starters, planning how and to whom your assets will pass, and identifying who will oversee making sure your wishes are carried out, can go a long way in limiting or avoiding arguments between heirs and loved ones.

If you own an interest in a medical practice, doing some pre-planning can also help ensure continuity for your loved ones, business partners, and employees in the event you become incapacitated and cannot manage your own affairs, or if you die prematurely.

Many physicians have accumulated sizable student loan debt. If that describes you, it is critical to look at your financial, estate, and tax planning through the lens of a comprehensive plan designed to ensure your loved ones will be able to meet financial obligations no matter what the future brings.

What Does Estate Planning Entail?

Most people think of “estate planning” as little more than “getting a will.” And, while wills are certainly a part of many effective estate plans, they are generally insufficient on their own when it comes to meeting the complex planning needs physicians and their families face.

Your estate plan should contemplate two main questions:

  • What will happen if I become incapacitated?
  • What will happy to my assets, liabilities, and legacy when I die?

Planning for Incapacity

No physician wants to contemplate becoming incapacitated, becoming the patient rather than the provider. However, as a physician, you likely know that incapacity resulting from an illness or injury accident can strike any of us, at any time.

Planning for potential future incapacity means creating advance directives for health care and finances, giving a trusted family member or friend the legal authority to be your voice and handle your affairs if you cannot do so yourself.

It can also mean purchasing disability income insurance to provide a steady income stream to help keep your family’s budget healthy and creating agreements with other physicians in your practice to provide for seamless operation and continuation if one of you is alive but cannot work due to a disability.

Planning for Death

Doctors also need to carefully consider how their assets will be managed and distributed when they die. This aspect of estate planning for physicians often includes creating and funding revocable and/or irrevocable trusts with pour-over wills, carefully structuring ownership of real estate and other assets, ensuring beneficiary designations on life insurance and retirement accounts are in line with goals and wishes, and entering into buy/sell agreements with business partners to ensure there is a ready buyer for a deceased physician’s share of their medical practice can continue.

While the federal estate tax exemption is high ($11.4 million for an individual/$22.8 million for a married couple in 2019), several states have lower exemption amounts. Creating a tailored estate plan using strategies designed to minimize the impact of estate, gift, inheritance, and generation-skipping transfer taxes can result in meaningful savings for your heirs and devisees. In other words, tax planning for your estate can mean your ultimate beneficiaries inherit more of the wealth you want to pass on to them, rather than your money going to unintended heirs like the IRS and state tax authorities.

If you are charitably-minded, there are also powerful strategies you could employ using trusts, life insurance, annuities, private foundations, donor-advised funds, and more to leave a legacy to the organizations that are most important to you. Sometimes, people assume their loved ones know their charitable intentions when in reality, those wishes are not clear. Incorporating your wishes into your estate plan can ensure everyone is on the same page.

Special Considerations for Physicians with Minor or Disabled Dependents

If you have minor children or others who depend on you for support, it’s even more critical to make sure you have an up-to-date estate plan. Your plan should address who would have physical and legal custody (guardianship) for minor children if you and your children’s other parent were to both die prematurely. This provision is generally included in a will.

Your will or trust instrument should also provide for management of assets for minor or financially-irresponsible beneficiaries. You can name a trustee to manage assets, giving the trustee broad or limited discretion to use the funds for the beneficiaries’ health, education, support, and maintenance. Estate planning using trust instruments can be extremely flexible, giving you the ability to implement guardrails around how and when your assets could be used, and dictate when the beneficiaries could receive lump-sum distributions. When structured properly, these types of provisions can protect the assets you’ve worked a lifetime to accumulate from spendthrift beneficiaries or from beneficiaries who simply are not prepared to manage an inheritance while grieving your death.

Steps Involved in Planning Your Estate

Just as with practicing medicine, there are no “one-size fits all” solutions when it comes to estate planning. The right strategy for you will depend on the type, size, and makeup of your estate assets and liabilities, your distribution wishes, and goals.

In addition to considering how your financial affairs should be managed in the event of your incapacity or death, you should also spend time thinking about who is in the best position to oversee your estate plan when the time comes to implement it. This could be a trusted family member or friend, or it could be a professional fiduciary. Again, there is not any single “best” solution.

The important thing is to put some thought into your plan and work with legal, tax, and financial professionals who can help implement it. Finally, remember to review your plan regularly and adjust it as your situation changes or as major life events occur.

Florida Probate & Trust Administration Checklist

Closing an estate according to a deceased loved one’s wishes is a high honor. However, it involves extensive paperwork and careful compliance with the law. Survivors who are mourning a loss often find themselves overwhelmed, but plenty of help is available.

Understanding the Florida Probate and Trust Administration

 

Probate is a legal process that wraps up the financial affairs of deceased people. In most wills, a trusted relative or friend is appointed as personal representative of the decedent’s estate.

If you are such a representative, your job is to identify the decedent’s assets and distribute them to heirs or beneficiaries named in the will. Probate court supervises this process. It is necessary because a will itself isn’t enough to pass ownership to the beneficiaries.

If the decedent left a trust, you may have been named successor trustee. That means you’re responsible for filing a notice of trust with the court, taking an inventory of the assets, liquidating assets if necessary, paying final bills, and transferring the remaining assets to the beneficiaries named in the trust.

Common Delays and Legal Hurdles

 

Probate and trust administration take time.

Probates must remain open for three months to allow creditors to present claims against the estate. Probates lasting five to six months are not uncommon. The probate process may last anywhere from 6 months to up to a year.

In addition, there may be delays in gathering the paperwork, inventorying the assets and tracking down the beneficiaries. Personal representatives often have to sell off real estate, resolve disputes with creditors or file federal estate tax returns. They must sometimes contend with legal challenges to a will.

An experienced Florida probate attorney can help you navigate the hurdles and expedite the process.

Successor trustees may find that it’s tough to please everyone.

The owner of a trust is known as the settlor. If a settlor becomes unable to manage the trust, Florida law typically gives the successor trustee absolute discretion to use the assets in the best interest of the settlor.

For instance, the trustee may transfer assets out of the trust in order to protect them. Beneficiaries might question such a decision later on when the settlor dies.

Trustees must also identify and pay estate expenses. If an expense is not trust-related, paying it from the trust may raise questions.

For sensitive issues like those, documentation is critical. Trust mismanagement, even if it’s unintentional, could result in legal liability.

Successor trustees are strongly advised to hire qualified legal and financial counsel.

Florida Probate Checklist

 

There’s a lengthy to-do list for personal representatives. Here’s a step-by-step guide on how to proceed before, during and after probate:

  • Locate the last will and testament along with any amendments. If you can’t find the original, contact the decedent’s family members or the estate attorney.
  • Request around 10 certified copies of the death certificate from the Florida Department of Health or the funeral home.
  • Gather important documents. If you must retrieve items from a safe-deposit box, get clearance from a probate official or attorney. These are examples of documents to look for:
    • Bank or brokerage account statements
    • Property deeds
    • Life insurance policies
    • The last three years’ tax returns
    • Records of any entities the decedent owned or co-owned such as a small business
    • Funeral instructions or the funeral invoice
    • Letters of instruction for personal property like jewelry, cars or works of art
  • Secure the decedent’s property and assets.
  • If you’re authorized, close or freeze all financial accounts.
  • Create a detailed list of assets and debts. Everything from cash left in a wallet to real estate must be inventoried. For each item, note the value and location. List all financial account information with passwords if applicable.
  • List all liabilities such as mortgages, credit card balances and medical bills.
  • At this point, decide whether you can avoid a drawn-out probate process. If the estate is small enough, you may be able to request summary administration, a simpler version of formal probate. Summary administration requires less time, effort and expense, but it’s available only in certain circumstances:
    • The decedent died more than two years ago.
    • The value of the estate subject to Florida probate — not including property that is exempt from creditors’ claims — does not exceed $75,000.
    • There are no creditors’ claims pending against the estate.
    • The decedent’s will did not specify formal probate administration.

Summary administration is initiated by filing a petition in court. The petition includes a list of assets and their value as well as a plan for distributing them. Petitioners must practice due diligence to find and notify potential creditors.

Any beneficiary or the personal representative named in the will may file the petition. If there’s a surviving spouse, the spouse must verify and sign it.

If the estate doesn’t meet the conditions for summary administration, continue with the probate checklist:

  • Categorize the assets. These are examples of assets that aren’t subject to probate:
    • Assets held in a trust
    • Assets in some pension or retirement accounts
    • Assets designated as payable or transferable upon death
    • Life insurance policies, annuity contracts or individual retirement accounts payable to specific beneficiaries
  • Here are some of the assets that must go through probate:
    • Solely owned bank or investment accounts
    • Life insurance policies, annuity contracts or individual retirement accounts payable to the decedent’s estate
    • Real estate, unless it is homestead property, titled in the sole name of the decedent
  • In the absence of a will, determine who the legal heirs are. Heirs must be located and notified, so list all the identifying information you can find.
  • If you have not already done so, retain a qualified Florida probate attorney.
  • Assemble the forms and documents necessary for opening probate. There are several required forms, but the probate attorney can help.
  • When you have everything you need, file a petition for probate administration with the clerk of the county’s circuit court. The decedent’s will must also be submitted.
  • During the probate process, resolve issues as they arise. Approve or deny any creditors’ claims. File a tax return if necessary, and pay what is due. If anyone challenges the validity of the will, be prepared for litigation if it comes to that.
  • Finally, complete the legal documents that will bring about the transfer of assets to beneficiaries or heirs.

 

Trust Administration Checklist

 

Successor trustees are equally busy. Here’s a guide to help you stay organized:

  • Gather relevant documents and records like those below:
    • Several copies of the death certificate
    • Recent tax returns
    • The life insurance policy
    • Retirement account and pension records
  • Carefully review the terms and instructions in the trust. Get a feel for how much discretion you’ve been granted. Note specific limitations as well.
  • Consult with a qualified trust attorney who can explain the agreement. You need a clear understanding of your fiduciary duty and how to comply with the law.
  • Take custody of all the assets held in the trust. You’ll probably have to retitle everything in your own name in order to maintain legal control.
  • If there’s no bank account for the trust, open one right away. You’ll need it to settle debts, pay ongoing expenses and distribute assets.
  • If necessary, sell off some assets to free up capital.
  • Most life insurance policyholders designate a beneficiary. If that’s not the case, file for any death benefits that the estate is entitled to. As the funds trickle in, deposit them into the trust bank account.
  • Have your lawyer help you identify creditors and pay off debts. Hire an accountant who is experienced in estate law to file a return. Pay any taxes owed. Stay current with ongoing expenses.
  • Since assets in a revocable trust are subject to a two-year creditor claim period, you may have to settle or dispute claims.
  • Keep good records of the debts, taxes, expenses and trustee fees that you pay out of the trust, and forward copies to all beneficiaries. Transparency is crucial.
  • Follow the terms of the trust as you distribute assets and transfer ownership to beneficiaries. Your role may be ongoing if benefits are to be paid out over time. For example, you may have been given discretionary control over a spendthrift trust.
  • Once all the terms are satisfied, your trust administration lawyer can help you prepare the documentation for officially closing the trust.

 

Participating in probate or trust management is a big responsibility. Educating yourself and getting organized in advance will pay off.

No one savors the idea of a lengthy legal process, but you don’t have to shoulder the burden on your own. The Florida Probate and Trust Administration exists to help personal representatives and trustees carry out their loved ones’ wishes.

Are Estate Planning Fees Tax Deductible in 2019?

interaction of florida estate planning and taxes

 

Not long ago, this was a complicated question. Prior to the Tax Cuts and Jobs Act of 2017, some personal legal fees were tax deductible, though most were not. Those that were deductible were, for the most part, deductible as “miscellaneous expenses,” which meant that they were deductible only if they exceed 2% of your adjusted gross income. In other words, it could be difficult to determine which fees were and were not deductible. And, if you had deductible legal fees, you could claim them only if you itemized deductions.

The 2017 law simplified the question, but not in the way you may be hoping. Miscellaneous deductions, including many types of legal fees, have been suspended. So, Jacksonville residents won’t be able to claim an income tax deduction for estate planning fees in 2019.

Notably, the suspension of miscellaneous deductions is temporary under the current law. These deductions have been eliminated for tax years 2018 through 2025. However, without further action, the deductions will be restored for tax year 2026.

 

How Does The 2017 Tax Reform Impact Florida Residents?

 

Although the elimination of deductions is never good news for a taxpayer, this change likely won’t have much effect on most Florida taxpayers engaging in estate planning. Most of the core legal services performed by an estate planning lawyer were non-deductible even before the law change. These include:

  • Creation of a will
  • Drafting of a codicil to a will
  • Creation of a healthcare directive
  • Creation of most powers of attorney

Even before the law change, only a handful of estate-related services were considered deductible expenses. These included services such as:

  • Tax planning advice and services
  • Legal fees relating to income-production, which could include trust matters

Since estate planning services are often comprehensive, it was sometimes difficult for taxpayers to break out and document the amount of fees paid for deductible services. And, of course, claiming those expenses depended on reaching a certain threshold and then itemizing deductions.

 

Are Any Estate Planning Legal Fees Still Deductible?

 

Deductions for personal legal fees have largely been eliminated for the time being, including well-known, longstanding deductions like the costs of tax-related advice and tax preparation. There are a few exceptions, but they fall outside the area of estate planning. These include some legal fees related to employment disputes, such as discrimination claims.

 

Are Legal Fees Considered Business Expenses?

 

It’s important to note that legal fees remain deductible as trade and business expenses. Thus, the legal costs of doing business such as assistance in structuring a business entity, contract review, and even legal fees incurred in defending most lawsuits against a company remain deductible. These costs of doing business can typically be deducted even if the taxpayer is operating a sole proprietorship and so filing only an individual tax return.

 

The Good News about Estate Planning and Taxes

 

Estate planning services aren’t tax deductible in 2019, but that doesn’t mean those services won’t cut down your tax bills—at least, for the future. One of the many benefits of a comprehensive estate plan is that your estate lawyer and financial professionals can advise you as to the best way to structure your holdings, gifts, bequests, and other transactions to minimize tax debt.

A carefully-considered estate plan also protects assets and the value of your estate in many other ways, including:

  • Ensuring that your loved ones receive the property you choose to pass to them
  • Ensuring that your assets are well managed and preserved if you are incapacitated
  • Ensuring that your trust structure and chosen trustee will profitably manage trust assets
  • Reducing the possibility of costly estate litigation after your death
  • Preventing dissipation of family assets through divorce or death

 

The bottom line is that, tax deductible or not, estate planning services provide a wide range of benefits to you and your family. In addition to the purely financial considerations listed above, your estate planning attorney can assist you with the creation of healthcare directives, nomination of a guardian for your minor children, and structuring and titling of assets during your lifetime.

If you haven’t created a comprehensive estate plan or your estate plan may be out of date, it is in your best interest to speak with an experienced Jacksonville estate planning lawyer as soon as possible.

Frequently Asked Legal Questions About Wills & Probate Law in Florida

Can I Modify/Amend My Will?

Yes, you can modify a will after it has been created. In fact, there is even a special term used to describe will amendments: codicil. A codicil can be used to add new provisions to a will, modify existing provisions, or substitute a new provision for one that is currently in place. Codicils must be executed in the same manner as the original will, meaning it requires witnesses and sometimes notarization (varies depending on your respective state of residence).

How Many People Actually Create Wills?

The short answer: more than you probably think. According to a document published by the Federal Reserve Bank of Chicago, “Will Writing and Bequest Motives: Early 20th Century Irish Evidence,” between 30-50% of US adults write wills before they die. There is a good reason for this trend. Having a will ensures your property is passed down and distributed according to your wishes. Without a will in place, the probate court will have the ultimate say over who receives your property.

What is the Difference Between a Living Will and Last Will and Testament?

A last will and testament is used to express how you would like your estate handled after you die and it does not take effect until your passing. For instance, the person creating the will (known as the testator), may specify his or her daughter as the beneficiary of their home. When the testator dies, the home will be passed to the testator’s daughter. A living will, on the other hand, provides instructions regarding your preferences for medical care if you are unable to make decisions for yourself such as whether or not you wish to remain on life support. Living wills take effect while the testator is still alive.

Do I Have to Hire a Lawyer to Create My Will?

Contrary to what some people may believe, there is no law stating that a will must be created by a lawyer. Many people choose to write their own wills to save money. Doing so, however, may cause some problems later down the road. The testator, for instance, may lack the necessary expertise in estate planning to correct technical deficiencies and execution errors; thus, making the will void. Allowing a lawyer to handle your will’s creation reduces the risk of error, ensuring your wishes are carried out the way you want them to.

Who can make a will?

Florida Statue 732.501 states that, “any person who is of sound mind and who is either 18 or more years of age or an emancipated minor may make a will”. In this statement, to execute a valid will, the testator (will maker) must be of “sound mind” which has been described as having the ability to mentally understand in a general way (1) the nature and extent of the property to be disposed of, (2) the testator’s relation to those who would naturally claim a substantial benefit from his will (natural objects of his or her bounty), and (3) a general understanding of the practical effect of the will as executed. Raimi v. Furlong, 702 So.2d 1286 (Fla. Dist.Ct.App. 1997). A person’s mental capacity to make a will is determined by their mental capacity at the time the will was executed. There must be sufficient evidence to show that the will was executed during a lucid interval.

Do Wills Go Through Probate Court?

Yes, wills go through the probate court. After the testator dies, the probate court may be initiated to determine the validity of the will. If the testator failed to create his or her will according to state law, it could be deemed invalid, at which point the court will have to decide how to distribute the estate in question. If you wish to bypass the probate court with your estate planning, it’s recommended that you use a trust instead of a will.

Frequently Asked Legal Questions About Divorce Laws in Florida

 

If you are considering or are going through the process of getting divorced, it can be a tumultuous and emotional time in your life. Dealing with an unfamiliar legal process can add to an already stressful situation; understanding more about what you can expect may help ease some of that stress. Here are answers to some of the most frequently-asked questions about getting a divorce in Florida:

Who can file for divorce in Florida?

In order to be eligible to get divorced in Florida, either you or your spouse must have been a Florida-resident for at least six months before filing, with the intention of staying in the state. All couples with children filing for divorce in Florida are also required to take a mandatory 4-hour parenting class before the divorce can be finalized.

How long will the process take?

If you and your spouse can come to agreement on how to handle things like child custody/visitation, child support, alimony, and how your property and liabilities will be divided, your divorce may be relatively fast. If, however, you cannot agree on one or more of those issues, your divorce may take a year or more to be finalized.

How does the court decide which parent gets custody of minor children?

Time sharing (custody) of minor children is determined based on the best interest of the children, with no pre-determined preference for giving primary custody to one parent or the other.

Does my spouse have to agree to the divorce?

If your spouse doesn’t agree to get divorced, Florida law provides that the court can still find the marriage is irretrievably broken. The court could require 90 days of marriage counseling; however, this is not done very frequently.

Do I have to prove fault to get a divorce in Florida?

Florida is a “no-fault” state for divorce. There are two grounds for divorce in Florida. First, if your spouse has been deemed mentally incapacitated for at least three years, you can get a divorce based on his or her mental incapacity. Otherwise, you can get a divorce based on “irreconcilable differences.”

How is child support determined?

Child support is intended to pay for children’s basic support needs, including things such as health insurance, day care expenses, shelter, food, clothing, etc. Ultimately, financial support of a minor child is the responsibility of both parents. The court will determine based on specific calculations how much child support is to be paid from one parent to the other parent.

Will I receive alimony from my spouse after the divorce?

Alimony, also called “spousal support”, may be ordered if the court determines you have a financial need for such support and that your ex-spouse has the ability to pay. Years of marriage is also a significant factor in determining alimony.

How are assets and liabilities divided after a divorce in Florida? Is it a 50/50 split?

Florida uses an “equitable distribution” standard. Equitable does not mean equal, however. It’s intended to make distribution fair to both parties. This means the court will evaluate a variety of factors to determine how to best split your assets – and your debt – after a divorce.

Can time sharing (custody), alimony or child support be modified in the future?

Yes. These amounts are not set in stone and can be changed if your situation or your ex-spouse’s situation changes, however the courts are unlikely to make changes unless there has been a substantial change in your/your ex-spouse’s circumstances.

How much will it cost me to get divorced?

Because every divorce is different, it’s hard to estimate how much it will cost. Talk to your divorce attorney about the specifics of your case to learn how different issues might impact your out-of-pocket expense.