Havens' Tax Havens: Jason E. Havens' Estate, Charitable and Asset Protection Planning Blog

Whitney Houston's Funeral Shows Trouble Already Brewing Around Her Estate - Forbes

2012-02-20T17:10:00.000-06:00

Whitney Houston's Funeral Shows Trouble Already Brewing Around Her Estate - Forbes (JEH: I hope for her daughter's sake that Ms. Houston had one or more trusts in place, whether via her will ("testamentary" trusts) or created during her lifetime ("inter vivos" trusts).)

Obama Declares War On Rich Folks And Wealth Advisors - Forbes

2012-02-16T22:09:00.000-06:00

Obama Declares War On Rich Folks And Wealth Advisors - Forbes

Obama's 2013 budget also sets stage for 2012 campaign

2012-02-14T10:19:00.000-06:00

Obama's 2013 budget also sets stage for 2012 campaign - USAToday.com ("The budget contains these details: •Estate taxes would return to their 2009 levels, with a $3.5 million exclusion and a 45% top rate.")

Cell Phone Companies ‘Throttling’ Largest Data Users « CBS Pittsburgh

2012-02-14T09:21:00.001-06:00

Cell Phone Companies ‘Throttling’ Largest Data Users « CBS Pittsburgh (JEH: Sprint is far from perfect, but certainly the best in terms of data plans.)

Estate Tax Limbo Likely to End This Year

2012-02-08T21:06:00.000-06:00

Estate Tax Limbo Likely to End This Year - AdvisorOne.com

Consumer alert regarding Florida annual minutes

2012-02-07T19:56:00.005-06:00

We continue to receive inquiries from clients regarding the "requirement" to file annual minutes in Florida. These erroneous email messages and correspondence are false. Following is a Florida Department of State official statement regarding this type of message (available via this link):

"CONSUMER ALERT: Please be aware that COMPLIANCE SERVICES (not to be confused with the Florida corporation, Compliance Services, Inc.) is mailing notices to business entities requesting that "Annual Minutes" and a fee of $125.00 be sent to them for filing. These notices are NOT from the Dept. of State, Division of Corporations. "Annual Minutes" are NOT required to be filed with any agency. They are to be kept by the business entity itself. Do NOT confuse these notices with the messages sent by the Division of Corporations reminding each business entity to file its 2012 Annual Report."

Please remember that Florida only requires annual reports for most business entities, which may be easily filed via the Florida Department of State's Division of Corporations website, Sunbiz.org. Unless you have updated information, you may literally confirm the information and pay your annual fee -- all online in a matter of minutes. Corporate resolutions, minutes of meetings, and other internal documents, including governing documents (bylaws, operating agreements, and partnership agreements), are generally never disclosed or provided to anyone other than the owners of the entity or perhaps a lender in the course of financing.

Please be careful out there. An annual report provided directly to the Florida Department of State is typically the only required filing. If ever in doubt, either contact the Florida Department of State directly or feel free to contact us.

Validity of wills in Florida and how to prove them

2012-02-04T20:52:00.010-06:00

Florida is relatively clear regarding its will requirements. In some cases, however, you must take additional steps to prove a will. Following are excerpts from a helpful article written by William T. ("Bill") Edy, Esq., which was published in the August 24, 2008 issue of "The News-Press" (the newspaper of the Fort Myers area, where I started practicing law). It's no longer available via The News-Press, but has been reproduced elsewhere. Much of the article was derived (in many cases paraphrased) from the Florida Statutes (primarily the Florida Probate Code, which is available here) and/or the Florida Probate Rules (available here).

"Last week, I mentioned that any document purporting to be a last will, or document attempting to make dispositions of a person's property after his or her death, must be filed with the clerk of court within 10 days after receiving notice that the will-maker, called the 'testator' [or 'testatrix'], is dead. Even if they believe the will is invalid or fraudulent, [section 732.901 of the] Florida Statute[s] requires that the custodian of the will deposit the will with the court for the proper county, where the probate judge will decide if it is valid and should be admitted to probate. Even if there are no assets in the probate estate, and even if no one intends to file a petition for administration, the custodian must still file the will with the court. Upon the filing of a petition for probate, the judge will decide if it is a valid will.

[Section 732.502 of the] Florida Statute[s] sets forth the requirements for a will to be valid. Any document which attempts to devise the property of a deceased person after his or her death must be executed or signed by the testator in the presence of two witnesses. No particular form of words is necessary to the validity of the will if it is executed with these formalities required by law. The proper execution of the will must be proven to the satisfaction of the probate judge. Probate comes from the Latin word meaning 'to prove.'

There are three ways to prove the proper execution of the will. The first method is by the inclusion of an affidavit attached to the will, which is signed by the two witnesses stating that they signed their signatures above the affidavit in the presence of the testator, who also signed above the affidavit. This affidavit must be notarized by a notary public who takes this sworn statement from the witnesses and from the testator. The notary must state that the notary either knows the persons taking this oath personally or has seen acceptable identification. The suggested words for the affidavit are set forth in Florida Statute[s section] 732.503 entitled [']Self-proof of will.[']

Attorneys who prepare wills generally attach this self-proving affidavit to the will because it makes it much easier to commence the probate process. FS 733.201[(1)] states that self-proved wills may be admitted to probate without further proof.

If the will is not a self-proofing will, the second way to prove the will is by the oath of one of the witnesses. [(See FLA. STAT. s. 733.201(2).)] One of the witnesses will be required to sign an oath in front of the judge or deputy clerk of court or commissioner appointed by the court. A commissioner is a notary public that the judge appoints to take the witnesses’ oath based upon the request made by the filing of a written motion. A commissioner is generally used when the witnesses are not located in the same county.

The third way to prove the will is by the oath before the judge, clerk of court, or commissioner signed by the personal representative nominated by the will, whether or not the personal representative is named a beneficiary of the estate. If the personal representative nominated in the will is not available, then the oath may be signed by any person who is not interested in, or a beneficiary of, the estate. The oath must state that the will is believed to be the last will of the decedent. [(See FLA. STAT. s. 733.201(3).)]

Individuals moving to Florida often ask the Florida attorney if their will signed in their former state is valid. [Section 732.502(2) of the] Florida Statute[s] states that any will, other than a holographic or [a] nuncupative will, executed by a nonresident of Florida is valid if the will would be valid in the state where the will was signed. If the will does not meet the Florida requirements it may become expensive to prove to the judge that the will would be valid in the other state unless it was already admitted to probate in that other state. A holographic will is a will written in the handwriting of the testator. A nuncupative will is an oral will.

***

[Section 736.0403(2)(b) of the] Florida Statute[s] also provides that the testamentary aspects of a revocable trust, that is, those aspects which attempt to transfer interests to others after the death of the trust maker, must be executed with the same formalities of the will and may be proved in the same manner as a will. Recently, a client who executed a trust some time ago sent me a courtesy copy of an amendment to his trust to place in his file. I had to call him and inform him that the amendment was not valid because it was not properly executed, even though he had signed the document he prepared himself. Because not all states have this requirement, it is dangerous to use a form from a self-help book or off the Internet.

***

If you have signed a will, you should have the original in a safe place and review it to ensure that it is a valid will. You should review it or ask an attorney to review it every few years, especially if you have married or have adopted a child after signing the will, which is called 'pretermitted.'

***

Assuming the will is valid, the attorney handling the probate process will have to decide whether the estate must utilize formal administration [(see FLA. STAT. ch. 733)], or whether the estate qualifies for one of the simpler administrations for small estates [(see FLA. STAT. ch. 735)], which will be the subject of next week’s article."

Finding and/or choosing a lawyer or other professional

2012-01-24T11:46:00.005-06:00

Earlier this morning I sent information to a potential/prospective client regarding how to find and/or choose a lawyer. There are some articles on this subject, but not an abundance of information. Consequently, I'd like to share my general thoughts.

As an initial matter, I always encourage potential clients to conduct due diligence on any professional whom they're considering, whether it's a builder, a CPA, a doctor, an engineer, a financial professional, or a lawyer. A professional's or their company's website is a good starting point. Specific to lawyers, however, two primary ratings systems exist: Martindale-Hubbell and Avvo.

For example, here are Destin's local lawyers listing "Estate Planning" as a self-described practice area, with the peer review rating being the one that Martindale-Hubbell has conducted for more than 130 years (and the client review rating being the one that they added in 2007 due to Avvo's newer ratings system): http://www.lawyers.com/Estate-Planning/Florida/Destin/law-firms.html. It's important to note that a lawyer is not necessarily rated in the area of law that they list as a practice area, which you need to discern. Here is the same type of search via Avvo, which began rating lawyers in 2007: http://www.avvo.com/estate-planning-lawyer/fl/destin.html.

Other sites provide informational lawyer profiles as well. Justia is one of my favorites and is affiliated with Cornell's Legal Information Institute. JDSupra is another good profile site. I also like LinkedIn, which offers extensive profile information on individuals and companies who create profiles via their site. I wrote on ABA article published in our RPTE Law Section's eReport that discussed these profile sites from a lawyer's perspective: "Should Lawyers Be Anti-Social Networking? Suggestions on Sites to Use (or Perhaps Snub)."

Ratings and profile listings are useful, but board certification is arguably more important. Just like doctors, everyone should be keenly aware of board certification (if available in a given state), which is generally the highest level of professional certification for doctors, lawyers, and a few other professions. The Florida Bar's board certification examinations are rigorous based on the view of every lawyer whom I know (including my own view). Notably, it's illegal for Florida lawyers to say that they "specialize" or are "experts" in any area of law unless they're board-certified by The Florida Bar (see the following one-pager).

I hope that these general thoughts help. They should generally apply to selecting nearly any type of professional, although the ratings, profile sites, and certifications might differ a bit. Referrals from friends or family help, but it's still prudent to obtain sufficient information to make your own assessment based on all of the facts that you can gather.

Preventing Heirs From Blowing Their Money - Barrons.com

2012-01-12T22:05:00.000-06:00

Preventing Heirs From Blowing Their Money - Barrons.com ("Fearing that their children might blow their legacies, more parents are shunning lump-sum payments to kids turning 21. How to set up a smart trust.")

Where Not To Die In 2012 - Forbes

2011-12-26T14:25:00.000-06:00

Where Not To Die In 2012 - Forbes (JEH: Kentucky and Tennessee make this less-than-desirable list)

FileLocator Lite - Free File Searching Utility

2011-12-23T11:39:00.000-06:00

FileLocator Lite - Free File Searching Utility (JEH: Especially for Windows 7 users (no "classic" search tool), this is an amazing program. You can see dates modified, created, and accessed. You can also export/print search results. Take a look at their customer list if you want more "recommendations": You're in very good company! (including Boeing, Cisco, FedEx, NASA, VISA, etc.))

Edwards Wildman Tax-Exempt Law - 2011 Charitable Giving Review

2011-12-21T10:37:00.000-06:00

Edwards Wildman Tax-Exempt Law - 2011 Charitable Giving Review

Federal Judge Green Lights IRS Search For California Gift Tax Cheats - Forbes

2011-12-20T14:33:00.000-06:00

Federal Judge Green Lights IRS Search For California Gift Tax Cheats - Forbes

Annuities In Estate Planning

2011-12-16T16:31:00.000-06:00

Annuities In Estate Planning - Private Wealth Magazine

Bringing the Budget Numbers Down to Size - By Carrie Lukas - The Corner - National Review Online

2011-12-16T15:31:00.000-06:00

Bringing the Budget Numbers Down to Size - By Carrie Lukas - The Corner - National Review Online

Estate Tax Exclusion to Rise: IRS Inflation Adjustments for 2012

2011-12-09T09:05:00.000-06:00

Estate Tax Exclusion to Rise: IRS Inflation Adjustments for 2012 - AdvisorOne.com (JEH: Due to the automatic inflation adjustment of the federal transfer tax exemptions as part of the 2010 tax act, the $5 million exemption available during 2011 and 2012 -- but perhaps not beyond -- will actually be increased as of 2012)

With Higher Taxes Looming, Are Your Clients Ready?

2011-12-07T11:46:00.002-06:00

With Higher Taxes Looming, Are Your Clients Ready? - Ed McCarthy, CFP® (Journal of Financial Planning, Nov. 2011) (JEH: I have posted several other links on this blog during the last few months that highlight estate planning opportunities under the 2010 tax act. For anyone with assets valued in excess of $1 million but less than $5 million (and certainly beyond that), or twice those amounts for married couples, more advanced planning such as qualified personal residence trusts, "intentionally-defective" grantor trusts, charitable lead trusts, and similar techniques should be considered. Most commentators agree that Congress will not likely reduce the now reunified gift, estate, and GST exemption to $1 million per person, which will occur as of 2013 without additional legislation, but no one knows what the "compromise" will be. Nearly all commentators are recommending the use of the above (and other) lifetime techniques that utilize the unprecedented $5 million per person exemption. Unfortunately, if you live in Connecticut or Tennessee, you have to deal with a state-level gift tax in addition to the federal rules. Please browse my posts over the past five months (from June 2011 to present) to obtain numerous summaries with more detailed information. For practitioners, please join me at the Heckerling Institute on Estate Planning, which I have attended nearly every year since 1999 and which will extensively cover these topics. Our American Bar Association group will also be reporting on and summarizing the Institute's proceedings, which will be available here.)

Local News | McDermott tries again to rewrite estate tax | Seattle Times Newspaper

2011-12-05T11:08:00.000-06:00

Local News | McDermott tries again to rewrite estate tax | Seattle Times Newspaper

White Papers and Special Supplements

2011-12-02T15:02:00.000-06:00

White Papers and Special Supplements - Wilmington Trust (JEH: Excellent new "Issues and Insights: Year-End Wealth Planning Considerations–Planning Amidst Uncertainty" on the 2010 tax act and its potential planning opportunities)

Reduction in Gift Tax Exclusion May Have a November 23 Effective Date - Forbes

2011-11-16T12:17:00.000-06:00

Reduction in Gift Tax Exclusion May Have a November 23 Effective Date - Forbes

Is the $5 Million Gift Tax Exempt Amount About to End? | The National Law Review

2011-11-14T13:45:00.000-06:00

Is the $5 Million Gift Tax Exempt Amount About to End? | The National Law Review (Article By: Elyse G. Kirschner and Carlyn S. McCaffrey of McDermott Will & Emery)

Manatt, Phelps & Phillips, LLP | _Estate Tax Law 11.08.11

2011-11-14T13:38:00.000-06:00

Manatt, Phelps and Phillips, LLP | Estate Tax Law 11.08.11

CLATs: A Leading Estate Planning Strategy for Wealthy Clients

2011-11-09T12:28:00.000-06:00

CLATs: A Leading Estate Planning Strategy for Wealthy Clients - AdvisorOne.com (JEH: With all-time low applicable federal rates (AFRs) and a $5 million federal transfer -- estate/gift/GST -- tax exemption per person through 2012, numerous folks should consider charitable lead trusts as part of their estate and charitable gift planning)

Using Skype for deposition in Italian estate

2011-10-31T08:09:00.004-05:00

My co-counsel and I obtained permission from the local Circuit Court to use Skype for our client's deposition in a probate case involving an Italian decedent. A Georgia judge made headlines earlier this year when he allowed Skype to transmit an unavailable witness' testimony in a criminal trial. Several other cases have made news since then.

For our equipment, we used my MacBook Pro, which has a good video card (important), a high-speed broadband Internet connection (critical), and a 30-inch high-definition television to display the digital video (with a mini-DVI to HDMI converter) so that opposing counsel could easily see. I also connected the audio to the television, which is superior to my MB Pro's speakers. You could even use a digital projector to make the image literally larger than life, although the video resolution on both ends would need to be HD to make the projection look good. The 30-inch HD television worked well for our small deposition's purposes.

Both the audio and the video flowed perfectly, allowing everyone to see and interact as if our client were in the room rather than over 4,000 miles away. Everyone, including the court reporter, was impressed with the flawless transmission. In fact, Skype performed so clearly that we could hear our client's clock ticking in the background without missing even part of a tick (or tock).

The simple aspect of Skype is its availability on every major operating system's platform from Linux to Windows and even mobile editions (not advisable for this purpose). Skype encrypts the transmission, which is also comforting in this type of setting. Skype-to-Skype video conferencing is free, and there's a premium (paid) subscription that allows multiple participants simultaneously.

We considered using Regus, which offers professional video conferencing around the world. The pricing for their service was relatively good considering all factors (around $1,000 for the US (FL) and Italy). However, free -- other than the electricity consumed and the Internet access, for which you must pay anyway -- is difficult to beat!

At the end of the deposition, the court reporter offered an excellent suggestion: allowing expert witnesses to testify via Skype. This would be extremely helpful in another complex trust/estate litigation case because our expert is a nationally-known lawyer who might need to travel for a day or more using the traditional approach, often waiting most of that time. With Skype, he could offer his expert testimony exactly when necessary and from anywhere, provided he had access to a webcam (with some external models produced by Logitech and Microsoft offering up to 1080p HD video and surround sound as well), Skype, and a broadband Internet connection.

I don't have time for more detailed postings such as this, but I view this one worthwhile. I hope that it helps someone. Incidentally, you could achieve the same or perhaps even better results using Apple's Facetime, AOL video messaging (which is also compatible with Facetime), Google Voice, MSN or Yahoo messenger, and so on. None is as ubiquitous as Skype, though.

On a personal note, you can even use Skype to share a newborn baby's video with your family. We did just that using my MB Pro a couple of years ago. With most laptops now including good to very good webcams and many hospitals offering high-speed wireless Internet, this is an amazing way to share free streaming video (well, other than the cost of having the child, of course!). There's no end to the ways that you can use Skype for business or personal purposes.

Fancy Appraisals Can Defeat IRS - Forbes

2011-10-11T09:11:00.000-05:00

Fancy Appraisals Can Defeat IRS - Forbes