New Laws Regarding Florida’s Durable Power of Attorney

Unexpected controversy has been exposed due to a Florida law enacted in October of 2011 regarding the Durable Power of Attorney (“hereinafter DPOA”).  Prior to the change in law it was possible to prepare a DPOA that became effective upon incapacity. However, the new law no longer allows the “upon incapacity” language, thus making DPOAs effective immediately upon execution. DPOAs that were drafted before the enactment have been “grandfathered” into the new law.

Power of Attorney

This has become an issue for many individuals, because banks and financial institutions are requiring all DPOA documents to be written in the new law due to recent economic recession and financial fraud.  These lending institutions are thereby disregarding the law that allows acceptance of DPOAs prepared before the new law.

This disregard is allowed through a statute in the law that gives banks the authority and time to review DPOAs to determine acceptance according to their own policies.  This can cause hardships for those with DPOAs with the old laws, especially those relocating from another state or country, and individuals already incapacitated or incompetent.

This issue could jeopardize the security of your future and you should not delay updating your DPOA. If you do not already have the new Durable Power of Attorney, consider working with us at Gulati Law to draft a new DPOA that is right for you and also compliant with Florida Law.

 

Source: Elder Law Answers

What is the Purpose of a Power of Attorney in Estate Planning?

There are many aspects to consider when planning your estate such as living wills, last will and testaments, trusts, beneficiaries, and so on. While all of these moving parts work together to create a successful estate plan, the power of attorney (“POA”) is one of the most significant of them all. This is because without this document, many of your assets may go unprotected in the event that you cannot manage things on your own.

If a POA is not named, and you are in an unstable condition, you will not have access to your assets unless they go through a guardianship proceeding with the courts. These proceedings can be very costly and time consuming, and you do not have the freedom to choose who that guardian may be. Appointing a power of attorney gives you this protection, and also allows you to take advantage of tax reduction.

A Power of attorney is always necessary, even in the case of joint ownership. These laws have changed dramatically within the last ten years, and documentation must be updated and checked on regularly to make sure they are in alignment with the new legislation. Call us at Gulati Law for a free legal checkup to find out the status of your estate plan and what we can do to ensure a smooth process.

estate planning

The Biggest Estate Planning Mistake

The most common mistake that can be made when estate planning is the failure to keep your forms and documents up to date.  As simple as it sounds, there are countless instances where people who did not have updated beneficiary forms inevitably ran into complications later in the process.

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Without proper documentation, the money and property you saved for your loved ones may fall into the hands of ex-spouses, irresponsible or untrustworthy family members, or other unintended heirs.  Besides having control over who gets your money and how much, designating a beneficiary also avoids probate in some circumstances.  Updating your estate plan regularly, you can be certain your wishes will be carried out in your absence the way you want them to.

Here are some of the forms that you should update regularly: bank accounts beneficiary lists, retirement accounts, life insurance benefits, and so on.  If a divorce, death, or any other life or relationship change occurs that will affect how you plan your estate, it is imperative you make those document changes immediately.  Contact us today to speak with a Florida Estate Planning Attorney and ensure you are protected in all aspects of your estate planning.

Source: Estate Planning Digest 

Real Estate Investment Tips on Tax-Deferred Exchanges (1031 Exchange)

A tax-deferred exchange is a where property owner trades one or more relinquished properties for one or more replacement properties of “like-kind”. The payment of federal income taxes and some state taxes on the transaction is deferred until a later date, instead of a typical transaction where the property owner pays the taxes on any gain realized from the sale.  The exchange, however, is not tax-free.  When the replacement property is ultimately sold, the deferred gain as well as any additional gain realized is subject to tax.

Section 1031 of the Internal Revenue Code states “that no gain or loss is recognized on the exchange of property held for productive use where the property owner has reinvested the sale proceeds into another property.  For example, if vacant land is exchanged for an apartment building, the taxpayer could not be forced to pay taxes on “paper gain”.  The general guidelines to be met in order to allow the taxpayer to defer all taxable gain are that the value of, equity in, and debt on the replacement property must be equal or greater than the value of the relinquished property.  Also, all of the net proceeds from the sale of relinquished property must be used to acquire the replacement.”

The main reason to exchange property instead of selling is the ability to postpone taxes or potentially eliminate them all together.  That way you are able to use the money saved towards investing in another property, and you receive an interest free loan from the federal government in the amount you would have paid in taxes.

Before considering a tax-deferred exchange, there are a few requirements that allow for this replacement.  First, your property must qualify.  Properties that are specifically excluded are: inventories, stocks, bonds, or notes, properties held primarily for sale, interests in a partnership, certificates of trusts, and choses in action.  Also, both the relinquished and replacement property must be held for productive use in a trade or business investment.  Immediate resales or the taxpayer’s personal residence do not qualify.

Tax Deferred Exchange

For a deferred exchange, the properties must be of “like-kind”.  This means they must both be located in the U.S. and must qualify.  Personal properties must be of like-class.  It is also a basic requirement that the relinquished property must be directly exchanged for the other property and cannot be sold for cash to be used in purchasing the replacement property.

Tax-deferred exchanges can be very beneficial for the taxpayer planning to sell an investment or property.  As long as the IRS guidelines are strictly followed, this method can be used as a wise investment strategy. Avoiding losses potentially as high as 30% due to state and federal taxes means allowing the proceeds to go towards future investments or make improvements to the replacement property. If you are considering a tax-deferred exchange for your property, contact us if you are interested in this type of transaction!

For more information see: http://www.irs.gov/uac/Like-Kind-Exchanges-Under-IRC-Code-Section-1031

Some Essential Estate Planning Tips

The ultimate goal of estate planning is to secure a better future for generations to come. There are six simple tips that can help make your estate plan more efficient.

The first tip is to define your goals you wish to accomplish with your estate plan.

Secondly, gather and organize your data. Review important financial documents, and review what assets you physically own. This is important because how you physically hold title in an asset, may take precedence over your will.

The third and fourth tips are to analyze and develop a strategy.

The fifth and final tip is to implement, track and monitor your plan.  It is important to finally implement your plan.

When drafting your estate plan, it is important to seek an attorney to help you. Like everything else in life, your estate plan should be tailored toward your needs and wants. Different states have different estate laws, so it is important to also seek an estate attorney from the state where you reside and where most of your assets are located.

Young Adults Need To Think About Estate Planning!

Most young adults do not think about future estate planning. However, reality is that you cannot predict the future outcomes of your life, whether there is an unfortunate disability or even death, estate planning for young adults makes sense.

It is unfortunate, but true that unforeseeable accidents and tragedies do happen to young adults, and are becoming more common in today’s day and age. When a young adult is under the age of 18 usually their parents make all of their medical and financial decisions for them. This unfortunately changes once you hit 18.

There are certain privacy laws that are in place to protect everyday people. This is a major disadvantage to someone who does not have an estate plan in place. For example, if you were to become incapacitated and over the age of 18, it is very hard for your family to make decisions about your medical care and financial situation, unless  you have the proper legal paper work in place. Sometimes hospitals and other service providers will not even talk to parents or family members if they do not have legal paperwork suggesting otherwise.

To prevent your family from going through tremendous difficult times during an already stressful time, you should schedule a consultation with an Estate Planning Attorney on your 18th birthday. They will guide you and draft forms that can help prevent situations as described above. Some of the forms will include, but are not limited to:

If you have any Estate Planning questions we invite you to contact us for more details.

Trust v. Will

trustEstate planning for you and your family can be a stressful task. One of the main questions that come up during Estate Planning is:

Do I need a Trust or a Will?

Wills are generally the easier of the two to set up. Even though it is the easiest to set up, it still has its drawbacks. Trusts are a great device if you are looking for privacy and greater protection, however they entail more work and costs.

Here are some more pros and cons:

  •  A revocable living trust is a private contract between the trust maker and trustee(s). However, a will has to go through probate, which of course is public record and anyone can read your last Will and Testament, list of beneficiaries and assets, and the breakdown of who gets what. This is not the safest way to protect your heirs, as public knowledge of inheritance can cause a lot of headache.
  • Another benefit of a revocable living trust is that you have the ability to plan your mental disability planning. This is a great protection if you or your spouse becomes incapacitated.
  • The main benefit of a revocable living trust is that you can avoid probate.
  • Trusts are considered their own legal entity in a sense, so you will have to change the name on registrations, deeds, and set up new bank accounts, if you want them to be part of the trust.

As you can see Trusts and Wills have both benefits and drawbacks. But, here is the real twist to trusts that most do not realize, you still should have a will drafted. Yes that’s right a will. Most people believe if you have formed a trust, you do not need a will. That is not completely true, because a trust takes time to draft and transfer to become valid, the will is an intermediary protection during this process.

If you have any more questions regarding Estate Planning for your future, please contact us today, we will be happy to help.

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Gulati Law