Welcome to the NEWSLETTER of Fisher’s Law Office, providing you with legal information you can use in your everyday life. If you have questions about what you read in this newsletter, please call us today.

1. FLORIDA LAW NOW RESTRICTS YOUR RIGHT TO GIVE AWAY YOUR PROPERTY IN YOUR WILL

Generally, under Florida law, your Last Will and Testament dictates who receives your property when you die. However, there are certain rules all clients should know:

(a) If you are married and you fail to give your spouse at least 30% of your estate, he or she can sue to claim the “elective share”.

The 30% “elective share” is very broad and includes assets placed in joint accounts and revocable trusts.

Remember, always include your spouse in your estate plan. Be very cautious about putting non-spouses on bank and brokerage accounts you own.

(b) Generally, your home cannot be devised (given away in your Will) if you have a spouse or minor children. Instead, your homestead passes according to the Florida Constitution to your spouse and children.

Practice Note: If you are divorced and your children are over age 18, you may will your home to anyone you choose.

2. WHAT HAPPENS IF YOU DON’T WRITE A WILL?

Under Florida law, if you don’t have a valid Will at death, you die “intestate” in which case the state of Florida has a list of individuals who inherit your property. This list is contained in Florida Statutes, Chapter 732.

If you want control over who gets your property when you die, write a Will.

3. WHO INHERITS YOUR PROPERTY WHEN YOU DIE INTESTATE (WITHOUT A WILL)?

Under Florida’s intestate statute, the first $60,000.00 of your estate goes to the surviving spouse and the balance of your estate is split equally between your surviving spouse and your children.

* Practice tip: If your children are not the children of your surviving spouse, then the entire estate is split equally between your wife and your children by a prior marriage.

4. WHAT HAPPENS IF YOU INHERIT AN IRA FROM A LOVED ONE?

Suppose your rich aunt is taking distribution from her IRA (Individual Retirement Account) based on her life expectancy and she dies. You are the beneficiary. Under new IRS rules, you should plan to take a distribution of the IRA either by taking a total distribution over the next five years or an annual minimum distribution over your life expectancy. If you fail to elect one of these options, you could be subject to a tax of up to 100% of the amount of the IRA!

The rules for retirement accounts are very complicated. If you inherit an IRA from a loved one who has died, see a competent tax adviser right away.

5. SECRETS TO PROBATE (WHAT LAWYERS AND FINANCIAL ADVISERS AND BANKERS FORGET TO TELL YOU ABOUT WHO GETS YOUR PROPERTY WHEN YOU DIE)

Most people assume that joint bank accounts, 401Ks, IRAs and other jointly held accounts pass to their loved ones according to the terms of their Will. This is not the case! Any accounts you have in joint names generally go to the joint tenant in Florida upon your death. Likewise, the beneficiary you named when you set up your 401K Plan or your Individual Retirement Account (IRA) will inherit the balance in these accounts when you die.

It is important to note that these types of assets do not pass through your Will.

The assets you have in your name only at death are distributed according to the terms of your Last Will and Testament. This process is called probate. Probate assets include items such as a car, a brokerage account in your name only or real estate in your name only.

A home held in joint names with a spouse (called “tenancy by the entireties”) passes immediately to your spouse upon your death.

It is very important that all of our clients investigate how all of their accounts and property are titled to make sure it is consistent with their estate plan.

For example, many clients have perfectly written Wills that carry out their intent but have set up joint bank accounts and retirement plans with the wrong beneficiaries.

If you have any questions about any of these things, see us today. It’s never too late to set up your estate plan but once you die, it’s generally too late to do anything.

6. HOW TO SURVIVE A DISSOLUTION OF MARRIAGE

Below is a list of practical suggestions on how to survive a divorce:

(a) Be calm. Nature will takes its course and you will probably get divorced with a lot less stress if you view your situation in a different way. For example, until recently, the countries of Chile and Ireland did not allow their citizens to get divorced. If you think going through a divorce is bad, just imagine what it would be like if you were not allowed to do so!

(b) Find a lawyer that understands your objectives. Interview a number of attorneys to find out which lawyer has a style you like and can serve your needs.

(c) Follow your lawyer’s advice. Lawyers look for three things when they accept a case from a client: (1) They want a client that will follow advice; (2) They want a client that will pay his bill and (3) They want a client who is pleasant to deal with. Be a good client. Follow your lawyer’s advice and if you can’t, discuss the reasons with your lawyer in advance.

(d) Be reasonable. Judges look favorably on reasonable people. The best way to be reasonable is to put yourself in the position of the other party and determine what he or she wants and what his or her motivations and desires are. If you aren’t sure that your basic instincts are one of reason, ask your lawyer what is reasonable before you do anything out of the ordinary.

(e) Don’t do anything crazy. Over the years, Fisher’s Law Office has noticed that clients lose cases when they do crazy things such as commit domestic violence, kidnap children, hide money or fail to follow court orders. These types of actions sabotage your case.

(f) If possible, make dissolution of marriage a win win situation. There are two ways to look at everything and if you see the entire process as one of negativity, you probably will have a bad result. On the other hand, you may see a divorce as a way to improve both you and your former spouse’s life. Perhaps your children won’t see you argue and they’ll be happier.

(g) Fill out the forms! On countless occasions, Fisher’s Law Office has noticed that clients do not fill out forms such as Financial Affidavits or secure copies of financial documents on a timely basis. If you don’t know how to do something, ask. That’s why the professional is there to help you.

(h) Attend divorce class. It’s mandatory to attend divorce classes in most counties in Florida. Attend the class. Most judges will not sign a final judgment of divorce unless the divorce class certificate is in the court file.

(i) Don’t hide your known faults. If you have problems that the other side knows about, there is no need to hide them. Discuss them with your lawyer. Judges like clients who are honest about their known problems but who are trying to overcome them. A past drinking problem or run in with the law can often be forgiven but lying about problems is almost never forgiven.

(j) Keep on top of your case: know what’s going on. No one has as much at stake in your case as you.

(k) If you have time, learn the law. Read a few pages of a law book. It could make your life easier. For example, Florida’s divorce statute, Chapter 61, is 42 pages of text. You don’t have to read every page and memorize it but you may want to read the statute on the internet so that you have a basic idea

of what your lawyer is trying to accomplish for you and how the process works.

(l) Help your lawyer with the case. You can help your lawyer with the case by helping develop evidence, interview witnesses, and obtain documents and other information that will be helpful to your side. Never underestimate the power of your own testimony or efforts in helping your case.

7. IDENTITY THEFT UPDATE: DON’T BE A VICTIM OF “PHISHING”

If you receive an e-mail from your bank, the IRS or your stock broker, watch out!

The latest identity theft fraud starts when a criminal “phishes” for account information by sending you an e-mail that claims to originate from a financial institution or a government authority.

The e-mail looks like an official request for an account update but it’s actually a criminal’s attempt to “phish” for personal information such as account numbers and PIN codes.

Do not answer such e-mails and never click on a link contained in such an e-mail.

Incredibly, such e-mails have a 5% response rate. This is because they look so real. Don’t be fooled. Never respond to a “phishing” e-mail.