Thursday, October 19, 2017

Are you a Florida resident?

Being a Florida resident has many advantages. The homestead property tax exemption can save hundreds of dollars per year on your property tax bill, and can save even more if you home increases in value after you become a Florida resident.  There is no state income tax and no state inheritance or estate taxes. There are protections that exempt a homestead residence, life insurance, annuities, and retirement accounts from creditor claims. Best of all, there is plenty of sunshine and no snow or ice.

We're often asked about the requirements for becoming a Florida resident.  The answer varies, depending upon who needs proof of your residency. Some aggressive tax states will try to claim former residents as current residents for purposes of imposing their state income tax or estate tax. 

In probate court, proof of residence is combination of factors reviewed by the court to determine whether the decedent had "intent" to continue Florida resident status or establish another residence at the time of death.  Many residents, especially "snowbirds", continue to return to their prior state of residence on an annual basis. They might maintain professional relationships with advisors, civic organizations, family members, and houses of worship in their prior state of residence. They might even continue to maintain a residence in both states.

The statutes for the homestead property tax exemption offer some good guidelines to establish residency. Section 196.015 lists the facts considered by the county property appraiser to determine whether the homestead property tax exemption should be granted for the Florida residence. To qualify as a homestead residence, it must be your primary residence, so you have to be a Florida resident. Here's what the statute, as last amended in 2009, provides:

196.015 Permanent residency; factual determination by property appraiser.
Intention to establish a permanent residence in this state is a factual determination to be made, in the first instance, by the property appraiser. Although any one factor is not conclusive of the establishment or nonestablishment of permanent residence, the following are relevant factors that may be considered by the property appraiser in making his or her determination as to the intent of a person claiming a homestead exemption to establish a permanent residence in this state:

(1) A formal declaration of domicile by the applicant recorded in the public records of the county in which the exemption is being sought.
(2) Evidence of the location where the applicant’s dependent children are registered for school.
(3) The place of employment of the applicant.
(4) The previous permanent residency by the applicant in a state other than Florida or in another country and the date non-Florida residency was terminated.
(5) Proof of voter registration in this state with the voter information card address of the applicant, or other official correspondence from the supervisor of elections providing proof of voter registration, matching the address of the physical location where the exemption is being sought.
(6) A valid Florida driver license issued under s. 322.18 or a valid Florida identification card issued under s. 322.051 and evidence of relinquishment of driver licenses from any other states.
(7) Issuance of a Florida license tag on any motor vehicle owned by the applicant.
(8) The address as listed on federal income tax returns filed by the applicant.
(9) The location where the applicant’s bank statements and checking accounts are registered.
(10) Proof of payment for utilities at the property for which permanent residency is being claimed.


Note that the number of days present in Florida is not a factor.  It is also important that none of these factors indicate residence in another state.

Florida residence status has important consequences for the administration of estates.  Florida has perhaps the strongest protections for surviving spouses and several protections against creditor claims to protect family members.  Florida also has special requirements for the execution of wills, powers of attorneys, and trusts. A document that is valid in another state might not be valid or enforceable in Florida. It is important to meet with a Florida attorney after you have established Florida as your state of residence to insure that your wishes will be honored and that your family is protected.

This post is not intended to serve as legal advice and does not establish an attorney-client relationship. Please consult with an attorney of your choosing before making any important legal decisions. 

Friday, October 13, 2017

Don't Let Your Desire to Help Others Make You a Victim.





Americans have a tradition of helping those in need.  Unfortunately, there are those who are interested in helping themselves to other people’s money.  With the recent tragedies that dominate the news, many of us will receive emails, view online posts, and come across other forms of electronic communication that remind us about the plight of those in need and target our willingness to help others.  With today’s technology, it is easier than ever for unscrupulous people to identify good-hearted people and take advantage of them. 

Estate planning attorneys often work with individuals who want to benefit charitable causes.  The use of a will, a trust, a community foundation, or direct gifts to a charity are usually actions that are carefully considered.  An estate planning attorney can discuss the method of delivering the gift to the charity and help the client research the charity and its practices to insure that the funds are in fact used for the purposes intended.  An estate planning attorney can also discuss the tax benefits that often result from charitable gifts. Not all contributions are tax-deductible. 

Individuals and organizations using social media and electronic communications may not have the same safeguards.  There is no guarantee that the organization handling the gift is regulated or recognized as a charity by the Internal Revenue Service. They may use a name that is deceptively similar to an established charity. In some cases, the solicitation of money can be in direct violation of Florida law.  In other cases, the solicitation could be an attempt to gain personal information that leads to further financial exploitation.

Recent events may motivate you to take immediate action for those who are in dire need of assistance. Technology allows you to do so with a few mouse clicks or taps on your smart phone. Stop and think before you give.  There are resources that help you evaluate the charity, including information about the percentage of donations that actually reaches the persons you are trying to help.  (charitynavigator.org, charitywatch.org, and thegivingpartner.guidestar.org are examples.) There are many, many worthwhile legitimate charities that will share information to assure you that they do exactly what they promise when you give them money. Don’t forget that they may be a better way to get help to the people in need, even if it takes a little more effort that a mouse click on a link in an email or on social media.  

This post is not intended to serve as legal advice and does not establish an attorney-client relationship. Please consult with an attorney of your choosing before making any important legal decisions. 

Florida Bar Board Certification in Wills, Trusts and Estates

I became board certified by the Florida Bar in Wills, Trusts and Estates in 2010.  Here's what the Florida Bar said about its Board Certification Program in a January 8, 2016 press release:

    THE FLORIDA BAR BOARD CERTIFICATION – WHAT IT’S ABOUT

    FOR IMMEDIATE RELEASE January 8, 2016

    CONTACT: Michelle Lucas The Florida Bar
    TELEPHONE: 850/561-3128

    Tallahassee, January 8 – Board certification is a voluntary program for lawyers. Approved by The Florida Supreme Court and established in 1982 board certification is administered by The Florida Bar to help the public choose a lawyer. Certification is the highest level of evaluation by The Florida Bar of the competency and experience of attorneys in the areas of law approved for certification. The Florida Bar evaluates all certified lawyers for experience and expertise in a particular area of law as well as for professionalism and peer acknowledgement. After successfully undergoing the certification process and becoming board certified, a board certified lawyer may say that they have been “Evaluated for Professionalism and Tested for Expertise.”

    The first certifications available were in civil trial and tax law. Board certification has now grown to include over 4500 lawyers in 26 areas of law including: admiralty and maritime law; adoption law; antitrust and trade regulation law; appellate practice; aviation law; business litigation; city, county and local government law; civil trial; Condominium and Planned Development; construction law; criminal appellate; criminal trial; education law; elder law; health law; immigration and nationality; intellectual property law; international law; juvenile law; labor and employment law; marital and family law; real estate; state and federal government and administrative practice; tax law; wills, trusts and estates; and workers’ compensation.

    The Board of Legal Specialization and Education (BLSE) of The Florida Bar governs the rules and policies for each of the certification areas and oversees the committees that implement each area’s standards. A lawyer must be a member in good standing of the Florida Bar and meet the area’s prescribed standards to become board certified. Standards for each area vary but each area maintains common minimum standards including:

    - A minimum of five years in law practice.
    - Substantial involvement in the field of law for which certification is sought.
    - A passing grade on the examination required of all applicants.
    - Satisfactory peer review assessment of competence in the specialty field as well as character, ethics and professionalism in the practice of law.
    - Satisfaction of the certification area’s continuing legal education requirements.

    Board certification is valid for five years, during which time the attorney must continue to practice law and attend Florida Bar approved continuing education courses. To be recertified lawyers must meet requirements similar to those for initial certification.

    “Lawyers strive for excellence in every endeavor,” said BLSE Chair Cynthia Johnson-Stacks. “Board certification is the natural progression of this innate desire. This highest of achievements not only benefits the individual lawyer, but by encouraging lawyers to hone their skills and practice with professionalism, the certification program is a great service to The Florida Bar and the public.”

    Board certification establishes an independent measure of competence, professionalism and peer acknowledgement which helps clients and fellow lawyers set expectations for professional abilities. This level of verifiable expertise can help both prospective clients and counsel seeking to refer legal matters and can help lawyers grow their practice with matters in which they can best utilize their expertise. Board certified lawyers are offered lower malpractice insurance rates. Certification serves as an impetus toward investing energy and thought necessary for future growth and professional contribution. Because continued certification requires satisfaction of specific standards and peer affirmation, others can be assured that the certified lawyer remains committed to excellence.

    “Members of the public may feel confident that when they speak with a board certified lawyer, they are speaking with an expert in the field,” said Jack Pelzer, 2013-2015 BLSE Chair. “Board certification not only recognizes past accomplishments and expertise, but provides opportunities for further growth in an area of specialization through interaction with other dedicated and exceptional lawyers.”

    For more information, please visit The Florida Bar Web site at Floridabar.org/certification or contact The Florida Bar’s Legal Specialization & Education Department at 850/561-5842.

    Add a comment