Asset Protection Planning
1. If I am named as Personal Representative of an Estate, am I personally liable for claims of the decedent’s creditors?
No. Unless you receive money from the decedent’s estate or trust preferentially (not including certain personal representative and trustee fees and reimbursement for certain expenses such as funeral expenses) to the claims of the creditors, you are not liable.
2. After someone dies, how soon thereafter should I see the lawyer?
Generally a couple of weeks afterwards, after you obtain death certficates
3. How many death certificates should I obtain? Are they all the same?
Generally, you should obtain a number of death certificates equal to all of the financial accounts, life insurance policies and qualified plans that were owned by the decedent at the time of his or her death plus three to five additional death certificates. You should only obtain death certificates identifying “cause of death” to claim life insurance benefits.
4. How often should I update my estate planning documents?
You should visit your estate planning lawyers each time you wish to change something substantive in your documents, if there is a change in the tax law or your estate planning counsel asks you to come in. If none of those events happen, no less often than every five years.
5. How is an LLC taxed?
An LLC makes an election at the beginning of its existence to be taxed as either a C Corporation, an S Corporation, a disregarded entity or a partnership for federal tax purposes. If no election is made then the default choice is a Partnership.
6. Which assets, in general, as long as they are not acquired by fraud are exempt from creditor process in Florida?
In general, there are six assets that statutorily protected which are homestead (up ½ acre in a city or municipality and 160 outside); qualified retirement plans and IRA’s, life insurance, annuities and wages (with a number of caveats). Property owned as Tenants by the Entirety is also generally exempt from creditor attachment in Florida.
7. Is Tenants by the Entirety the same as Tenants in Common?
No. Only spouses can own property as Tenants by the Entirety. Additionally, upon the death of one of the owners in each of a Tenancy by the Entirety and Tenancy with Right of Survivorship, the property passes to the remaining owner; in a Tenancy in Common, the deceased owner’s share generally passes as designated in the deed or by such tenant’s estate planning documents.
8. What is amount of the Unified Credit against Gift and Estate Tax?
Under present law the Unified Credit is $5,490,000 for 2017 and is scheduled to increase to $5,600,000 in 2018
9. How much can you give away each year without filing a gift tax return?
Under present law, the annual amount which you can give to any done which is excluded from gift tax is $14,000 in 2017 and is scheduled to increase to $15,000 in 2018.
10. What is likely to happen under the new tax law?
For a discussion of the new law, please visit our website and follow Tax Reform Now.
11. If I have a Will from another state, is that good in Florida?
Out of state estate plans should be reviewed by a licensed Florida attorney to ensure compliance with Florida law.