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- Probate, Trust & Guardianship Law Committee
- of the
- Martin County Bar Association
- Thomas H. Thurlow III
- Thurlow & Thurlow, P.A.
- http://thurlowpa.com
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- Estate Planning Documents
- Federal Estate Tax Update
- Protected Homestead vs. Homestead Exemption
- Homestead Exemption Portability
- Questions and Answers
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- Last Will and Testament
- Revocable Trust
- Durable Power of Attorney
- Declaration Naming Preneed Guardian
- Designation of Health Care Surrogate
- Living Will
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- House has passed repeal bills in past three Congresses
- 110th Congress:
- Repeal
- 7 House bills
- 4 Senate bills
- Retain but Modify
- 4 House bills
- 1 Senate bill
- Cost to repeal: $58 Billion in Fiscal Year 2012
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- The Legal Chameleon?
- “To the intending alienor it is frequently a pitfall, and to many a
testator or trustor it is the fatal rock upon which he is lured by the
sirens of full and free choice in leaving his property. To the general practitioner, however,
it is more often than not a chameleon, which changes color to accord
with the background against which he is viewed.”
- Harold B. Crosby and George John Miller, 2 Fla. L. Rev. 12 (1949)
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- Article X, Section 4, Florida Constitution
- Protection from Creditors
- Exemption from forced sale
- Shall inure to the spouse or “heirs” of the owner
- Limits on devise
- Shall not be subject to devise if:
- Survived by a spouse, or
- Minor Child
- (except may be devised to spouse if no minor child)
- Limits on alienation
- May alienate, if joined by spouse
- §733.608 F.S. - Not subject to probate
- Warburton case – could not be sold to satisfy general bequests
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- Article VII, Section 4, Florida Constitution
- “Save our homes cap”
- Save our homes “portability” *New!
- Includes school district levies
- Article VII, Section 6, Florida Constitution
- Exempt from taxation up to $25,000
- And for value from $50,000 to $75,000 *New!
- Except school district levies
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- Amendment 1
- Effective January 29, 2008
- Applies retroactively to 2008 assessments
- Passed with 64% vote statewide
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- Allows transfer of “save our homes benefit” to new property
- New Homestead as of 1/1/2008:
- IF “the person” received homestead exemption on prior homestead on
1/1/2007
- Prior homestead sold or abandoned
- New Homestead as of 1/1/2009 and thereafter:
- IF applicant received homestead exemption as of January 1 of either of
the immediately preceding two years
- Limits
- Upsizing à Full benefit
up to $500,000
- Downsizing à
Proportional Benefit up to $500,000
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- Property #2 qualifies for portability in 2008
- Must apply by March 1, 2008 – oops!
- Extended to April 1 for portability in Martin County as long as
homestead was already filed.
- File form DR-501T (released January 29, 2008)
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- Property #2 qualifies for portability in 2009
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- 1 à 2 split?
- Q: What if homestead is jointly
owned and owners establish two separate homesteads?
- A: Portability = SOH/# owners
- **Not % of ownership **
- Limited to $500,000 cap total (not individually)
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- 1 à 2 split?
- Q: What if one of the owners continues
exemption on the first homestead?
- A: Not eligible for portability
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- 2 à 1 combine?
- Q: What if two people who
previously owned separate homesteads join in establishing a new
homestead?
- A: Highest difference of the new
homesteaders may be transferred.
- Proportional if downsizing
- Subject to $500,000 limit
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- Joint à 1 Gotcha
- Q: What if homestead is jointly owned by two owners and owners
establish a new homestead but only one owner holds title to the new
homestead?
- A: Only eligible for transfer of
one owner’s SOH benefit (50%).
- ½ Proportional if downsizing
- Subject to ½ $500,000 limit ($250,000)
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- Spouse à Spouse - Gotcha
- Q: What if homestead is owned by one spouse and owners (or surviving
spouse) establish a new homestead in the other spouse’s name?
- A: Does not qualify for
portability
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- Asset Problems
- Under funded Credit Shelter Trusts
- Unnecessary Credit Shelter Trusts
- Homestead
- Pay on Death Accounts / Joint Accounts
- IRAs payable to trust (when not necessary)
- Beneficiary Designations don't mirror trust or will (esp. predeceased
child)
- Life Estate Deeds
- State Death Tax on out-of-state property
- Document Problems – Wills
- Self Proving Affidavits
- Personal Representative Qualification
- Tax Apportionment Clause
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