Florida Probate Attorney and Florida Inheritance Lawyer Florida Probate Attorney Blog

To avoid will disputes & achieve intent intestate succession law revised

In the article Spouses automatically inherit under new law it was mentioned that New South Whales Australia changed their intestate succession laws. While it will not impact my clients the article was of interest to compare how things are there versus Florida and the US and the reason for acting.

The state attorney General John Hatzistergos said "When people die without leaving a will, there is the potential for legal dispute as relatives fight over the estate". In Florida and most US states while there is typically the chance for a dispute whether or not there is a will or trust it cannot be solely because there was no will in the sense that the intestate succession law is clear it would either go one half to the children and one half to the spouse or if they were the children of both parents the first $60,000 goes to the spouse and then half and half. I do not see where it would cut down any disputes as reasons to dispute of lack of capacity, or undue influence, fraud or issues that may be asserted in a will are no present and with the change they proposed it would still not change the most likely disputed situations when there are spouses who are not the surving childrens parents.

It is interesting to note however that they had a poll which showed that 75% of the time people who had a first marriage situation wanted there property to go to the spouse then to the children. When estate tax is not an issue I have found that to be typically the case as well that the parent wants it to go first to the spouse then to her kids and which is why Florida makes the distinction in the amount that the spouse gets depending on whether there are kids from someone other than the surviving spouse or not.  

Likewise their poll showed just 30% percent want all to spouse if there are kids from a prior marriage. Those numbers sound consistent with numbers I have dealt with practicing in both Florida and Illinois.

It is a good idea to have the Intestate succession laws reflect the likely intent of the testator.

An additional issue mentioned in the article was that 45% of people in the survey did not have wills. For clients that I deal with as an estate planning attorney will all have documents in place and almost always avoid probate although from clients in general throughout the US it would be interesting to hear the latest stats the last I had read the ABA at one point had done a survey which showed nationally well above half of adults did not have a will.

Estate Tax Law Revision

Estate Tax Repeal or Revision has been scheduled to be discussed by the US Senate on May 4, 2006.

The Current exemption amount is $2 million per taxpayer until 2009 when it will become $3.5 million and then be repealed for one year in 2010 prior to returning to the 2001 level of $1 million per tax payer under current law.

The House has already approved permanent repeal. It is doubtful with all the hurricane and war expenses that the tax will be repealed but will likely be amended to provide for a higher exemption amount and possibly a lower rate of tax.

Since Florida has no state estate or inheritance tax this could allow more residents to avoid paying any estate taxes and allow the beneficiaries to receive their full inheritance without losing large portions to the government.

Florida-Probate.blogs.com estimates there will not be repeal but there will be modification and it will be in the range of $3.5 million to $4 million adjusted for inflation and possibly a lower tax rate in the range of 30%.  The debate in the senate will begin May 4.

2006 Estate Tax Exemption

The Estate Tax Exemption for 2006 is $2 million dollars. The Gift Tax exemption remains $1 million. The annual exclusion is now $12,000.

Happy New year.

Estate Planning for Alternative Lifestyle Couples

The Issue of Estate Planning for Alternative Lifestyle Couples has been in the news and a recent article can be read by clicking on the link above. 

"There are very few attorneys who specialize in these issues, and the law is very unsettled," Attorney Brian Rice said. "If you're moving from state to state, or traveling, protections you had in one state may not be available in another."

Outside of Massachusets which now allows same sex unions there are issues that life partners would experience different from a husband and wife such as no marital deduction for estate or gift tax, no treatment as a spouse for inheritance rights or priority to serve as a personal representative, no right to file joint income taxes among other distinction although some states now provide for health insurance and some benefits when they are in civil unions.

In Florida marriage is defined as the union of a man and a woman. Marriage in Massachusets or any other jurisdictions which allow same sex marriage will not be reconized in Florida. The state also does not allow people living an alternative lifestyle to adopt. The statute which provides this can be found here.