Asset Protection

  • Asset Protection Planning 
    Asset protection planning involves figuring out and applying a lawful series of techniques that protect your assets from claims of future creditors.

The techniques are designed to deter potential creditors from going after you, and frustrate them if they do, generally by making it difficult or impossible for future creditors to grab hold of your assets or collect judgments against you.

In cases where significant sums are involved, asset protection planning often includes setting up a series of trusts, partnerships and/or off-shore entities to hold legal title to your assets. A future creditor who recognizes how difficult it would be to collect on any judgment it may win, might decide it makes little sense to pursue a claim, or be willing to settle for pennies on the dollar.

There is a very sharp dividing line between "legal" asset protection planning on the one hand, and actions to defraud creditors, which are criminal, on the other. For that reason, it is essential to have an attorney guide you through the process.

We urge all visitors to institutions offering Free Advice to beware of some operators, sometimes posing as foreign trust companies, that market packages of services that they claim will protect your assets. Some of them are criminal enterprises that will steal your assets. Some are fast buck artists that will leave you with no protection. Some will open you up to serious criminal charges.

Many will do all three:

- take your money

- leave you with no protection

- set you on the road to prison.

o     IRA & 401K Rollover

 The new law gradually increases the amount you can contribute each year to a traditional IRA or Roth IRA** from $2,000 per person to $5,000 per person. The increase is phased in over a seven-year period starting in 2002. As a result, a married couple may eventually contribute up to $10,000 a year to a traditional and/or Roth IRA. There is, however, a limit of $5,000 per IRA.

 - New Rollover Rules
With the new law, it is much easier for you to roll over (or transfer) retirement plan assets from one plan to another. This also applies when you move funds from a traditional IRA to an employer-sponsored retirement plan.

- You can roll over after-tax contributions
Roll over from one qualified plan to another (or to an IRA, in certain situations). Also, surviving spouses may now roll over retirement plan distributions to a traditional IRA, or to a qualified plan, 403 (b) plan or 457 plan (generally, a plan sponsored by state or local governments) in which they participate. Previously, a surviving spouse could only roll over these distributions to his or her traditional IRA.

- Expanded Rollover Rules
Under prior law, investors could only roll over distributions from a 403 (b) plan to another 403 (b) plan or to an IRA. Now, in most cases, investors can roll over assets between 401 (k) plans, profit-sharing plans, money purchase pension plans, 403 (b) plans, governmental 457 plans, and traditional IRAs. Previous rollover restrictions are eliminated.

The expanded rollover rules may provide you with more control over where you want your retirement plan assets held and how you want them to be invested.

How it affects YOU:
It is important to find out exactly how these changes affect you and your family.

Speak to an attorney. Call Kaba Law Group, P.L.L.C., Law Office to have a personalized assessment done.

You should have an estate plan if:

(1) you are the parent of minor children

(2) you have property that you care about

(3) you care about your health care treatment.

If you do not have minor children, do not care about your property, and have no concerns about your health care treatment, then you do not need an estate plan. But if you meet any of these categories above, you should have an estate plan.

Are you or someone you know looking for an Estate Planning Lawyer for legal advice or representation?

Contact Kaba Law Group, P.L.L.C., today!

o    IRA & 401K Planning

Planning Considerations:
The increase offers an opportunity to save more money for retirement. You can make contributions to a traditional IRA*** (and possibly to a Roth IRA) even if you put money into an employer-sponsored retirement plan.

Catch-up Contributions for Traditional IRAs and Roth IRAs
The new law allows investors age 50 and over to contribute more to an IRA. With these "catch-up" contributions, investors may be able to put up to $6,000 a year to an IRA when the provisions are fully phased in.

Starting in 2002, those 50 and over can contribute an extra $500 per year to a traditional IRA and /or Roth IRA. The catch-up contribution will remain at $500 through 2005, and will then increase to $1,000 for 2006 (and later years). For those investors 50 and over who plan to retire in the near future, this provision provides an added opportunity to build up funds for it. Again, investors can make catch-up contributions (and IRA contributions) in addition to employer-sponsored retirement plans.***


    • Probate

 Probate is a court proceeding in which a Will is proved to be valid or invalid. The term also means any matter related to the Estate of a Decedent, whether the person died with or without a Will. Probate is used to describe the activity of taking care of the assets and debts of a deceased person under the protection of the law, typically a probate court. Probate courts perform special, distinct judicial functions.

Most commonly, probate courts are responsible for the proper administration of estates. Such proper administration usually involves the following:

Determining the validity of a will; 
Appointing an executor or administrator of the estate; 
Overseeing the marshalling (securing) and proper preservation of estate assets; 
Overseeing the payment of the proper creditors of the estate; 
Overseeing the payment of taxes to which the estate is subject; 
Overseeing the final and proper distribution of the "net" estate.

In addition to estate administration, probate courts often conduct special judicial proceedings including adoption, conservator and trust administration proceedings.

Often, a decedent's estate consists of two distinct groups of property:

- Probate property : this group consists of property that passes according to the provisions of the Testator's will or laws of intestacy. This is usually property that is owned solely and outright by the decedent at the time of death.

- Non-probate property: this group consists of property that passes automatically to the surviving beneficiary or co-owner without regard to the decedent's will.

- For example, life insurance proceeds generally pass automatically to the beneficiary designated in the life insurance policy. The beneficiary receives the proceeds without regard to:

(a) whether or not there is a will; and

(b) if there is a will, without regard to its provisions.

- Another example is property owned jointly with rights of survivorship. Upon the death of one of two joint owners, the surviving owner automatically ("by operation of law") becomes the sole owner of all of the property. Again, the surviving co-owner becomes sole owner proceeds without regard to:

(a) whether or not there is a will; and

(b) if there is a will, without regard to its provisions

Does having a will mean you can avoid probate?

No. The existence of a will does not bypass probate process. When the owner of any property dies, the probate court must either decide that the will is genuine or decide who is to obtain the property if there is no will. So, ultimately whether or not there is a will there is a strong possibility you will have your "day in court."

Our firm deals with the legal process during which the will is validated; the assets of the deceased are inventoried; and all debts, creditor claims (including applicable lawsuits) and taxes are paid. Then, once it is determined who is entitled by the probate proceedings, the remaining assets that were left in the Will are distributed to the named beneficiaries and heirs.

At Kaba & Associate, P.A, we understand that the probate process is generally overseen by an executor (if there is a will), or by a court and a court appointed personal representative (without a will.) Probate can take anywhere from four months to a number of years to be completed, depending on varying circumstances.

    • Will

A Will gives you full control over such issues as who gets your property, who will be the guardian of your children, who will manage your estate upon your death, who will inherit assets that you haven't left to anyone else and other issues relating to the management and distribution of your estate.

Did you know that if you die without a Will the state you live in decides how your property is distributed? Often, the surviving spouse will get half the estate and any children will inherit the other half, which may or may not be how you want your property distributed. Also, if a person dies without a Will and without any trace of any heirs, all property will escheat (be turned over) to the state.

These are just a couple of reasons why it's definitely in your best interest to take the time to create a Will.

Over 70% of American adults do not have one. Are you one of them?

Protect your loved ones! Contact Kaba Law Group, P.L.L.C., for Legal Advice on the Preparation of a Last Will & Testament:

    • Contesting a Will

A will contest is a court proceeding in which a court is called upon to determine the validity of a will. The person challenging the validity of a will is often referred to as the "contestant." The person who is defending the will is called the "proponent."

In a will contest, the contestant offers proof or evidence that the will is invalid. Such proof is usually intended to demonstrate any one or more of the following:

the will was not properly signed; 
the person making the will (the "testator") lacked the requisite testamentary capacity; 
the testator was subjected to undue influence in the making of the will; 
the testator was fraudulently induced into signing the will; 
there was a mistake in the will.

Testator Under Undue Influence:

Perhaps the most common grounds for challenging a will, "Undue Influence" generally means that the person making the will was subjected to the improper influence of a third party. For example, a child may have unduly influenced a parent to leave a disproportionately large share of the estate to that child.
Another example is where the signer of the will has remarried and is unduly influenced to disinherit, in whole or in part, his/her children. Or the opposite may have occurred: the spouse may have been disinherited as a result of the children's undue influence.
Other examples of people who might exert undue influence are care-givers, advisors, and friends.

Will did not meet statutory requirements:

Each state has specific requirements that apply to the manner in which a will is prepared and signed. For example, many states require that the will be acknowledged in the presence of two (2) witnesses. Some states require three (3) witnesses.
The essential question is whether or not the will satisfied the statutory requirements at the time it was signed

Testator Lacked Mental Capacity:

Often, a person who has signed a will lacks the mental capacity necessary to create a valid will. For example, the person making the will suffers from a disease or condition that impairs his/her memory. An impaired memory could affect a person's awareness of the size of his/her estate and/or the identity of his/her natural heirs.

Testator did not sign the will:

In all states, the person making a written will (the "Testator") must sign it. Signing a will means signing one's name or making one's mark. If a will is prepared by an attorney but is never signed by the client, the unsigned will is invalid.

If you believe you have been wrongfully deprived of all or a portion of your rightful inheritance, you must act immediately to protect your rights. If you would like us to review your situation, contact us at Kaba Law Group, P.L.L.C.

A Last Will and Testament is an instrument by which a person makes a disposition or gift of his or her property. The gifts do not take effect until the death of the testator (the person making the Will). To be valid, the Will must meet the requirements and formalities of state law.

Kaba Law Group, P.L.L.C. is knowledgeable about all aspects of drafting wills under Florida law, whether the Will is simple or complex. We will help ensure that your assets reach your intended beneficiaries after your death.

If you die intestate (without making a Will), you do not get to choose who will receive your probate assets. The state government decides for you, and each state’s laws are different. In Florida, if you die intestate, the persons who inherit from you depend upon whether you are married or single, whether you have children, and other factors. It also may depend upon the nature of your property.

A living will allows your last wishes to be honored and gives you peace of mind.

With a medical power of attorney and a living will, Terri Schiavo's wishes and desires would have been known.

Perhaps your estate planning needs cannot be met by simply drafting a will. If so, a more sophisticated plan should be created to meet your needs.

If you are interested in protecting assets, and preserving wealth so that your assets will go to the person or persons you select, contact Kaba Law Group, P.L.L.C., an experienced estate-planning Law Office. 


    • Living Will

Get it right, a living will should be reviewed by a lawyer.

Don't cut corners get legal advice. A Living Will is the popular name for a document spelling out the general kinds of medical care you would want--or not want--in the event you became unable to communicate with your health care providers. Other names for a Living Will are  "medical directive" or "medical declaration". It does not impact who gets your property or who is your Personal Representative or Guardian of your minor children.

If your visit will include a surgical or medical procedure, it is always wise to have a Living Will on hand.

When your adult life is just beginning it is hard to think about death, but death is a reality. At some time all of us have to deal with death, and it is an important topic to discuss with your family. When a relative becomes terminally ill and death is imminent, a family can become emotionally frustrated if they do not know the death wishes of the dying family member.

Does the relative want to be kept alive artificially by a machine or die a natural death? Knowing this information you should talk with a living will attorney & get the details about the medical care down on paper, make sure the laws are reviewed with a lawyer.

At Kaba Law Group, P.L.L.C., we can assist you with the preparation of a Living Will.

    • What is a Will?

A Will is an instrument by which a person makes a disposition or gift of his or her property. The gifts do not take effect until the time of the testator’ s death. To be a valid Will, the Will must meet the requirements and formalities of state law.

    • What is a Testator?

The person who makes a Will is called the Testator, if a man, or the Testatrix, if a woman.

    • What is an Executor ?

The Executor is the person you name to carry out the directions in your Will after your death. After your death, the Executor must be appointed by the Court before he or she can act.

In your Will, you may designate the person you wish for the Court to appoint as Executor. You may wish to name one or two successor Executors, to act in the event your first choice does not or cannot serve.

    • Who should draft my will?

Only an attorney can legally draft a will for a person, unless a person drafts his own will. Personally drafted wills are often incomplete, and therefore invalid under state law. An invalid will is worthless.

Kits for writing a will are normally not state-specific. If your will fails to follow state law, it will be invalid.

    • What are the requirements for a will?

The specific requirements depend on state law. Commonly, the will must be in writing, signed by the person whose will it is (the "testator") and witnessed by (usually) two persons. The exact number depends on state law.

The testator normally must have attained the age of majority, and must be of "sound mind" at the time the will is executed. A married minor is usually capable of executing a will.

The witnesses normally MUST be "uninterested," meaning they're not beneficiaries of the will. Witnesses also must be competent persons.

A will normally doesn't need to be notarized, but a document called a "self-proving affidavit" might be created to provide further legal strength to the will.

"Holographic" (handwritten) wills are still recognized in many states. Such a will must be in the handwriting of the testator and signed by the testator. Witnesses aren't normally required for a holographic will. State law might impose other conditions on a holographic will.

    • What are the executor or personal representative's duties and obligations?

The representative is charged with following state law in wrapping-up the decedent's affairs. This includes:

Giving the proper notices to the proper parties 
Collecting all the decedent's property 
Receiving claims against the estate 
Paying just claims and disputing others 
Distributing the estate property according to the will or state law 
Along the way there may be other necessary actions, like selling estate property to cover debts or allow for proper distribution.

    • What if I want to cancel or change my Will after it is signed ?

Do not write on your will or mark through any words. Even small changes or markings could void the entire will. If you wish to change your will, we can help you implement the updates without invalidating your will. You also may revoke your Will. Like the creation of a Will, the revocation must strictly comply with state law. If you wish to cancel or change your Will, you should be as diligent in seeking legal advice as you were when you created your Will.

    • Who will take care of my pets after I die?

In your Will, you can name the person (and one or more alternates) you would want to have ownership and custody of your pets after you die. If you wish, you can direct your executor to set aside a sum of money to provide for life-long care of any pets that you own at the time of your death.

Before you sign your will, be sure to discuss your plan with the intended owners to make sure they agree with your wishes. If you do not have a will, your pets pass under the laws of intestacy as personal property.

    • Is there a way for me to bear the cost of a party or celebration for my friends and family after I die?

Generally, yes. Your will can include a directive to your executor to expend a reasonable sum from your estate for this purpose. You would want to include a clause to give your executor sole discretion to provide for the expenditure. Language should be included to make sure the cost is deemed a necessary expense incident to the administration of your estate.

Make sure your named executor knows of your wishes, as often a will is not read until after the memorial service or burial.

    • I recently divorced. My Will leaves everything to my former spouse. Do I need to change my Will?

Yes, but you have protection. If a person divorces after making a will, all provisions in the will in favor of the former spouse are null and void, unless the Will expressly states otherwise. However, now that your former spouse is not a beneficiary, you should review your Will to determine who will receive your property under your will.

There are at least five family changes where updating your Will is advisable:

Birth or adoption of a child or grandchild. 
Divorce (either your own or a family member's). 
Death or disability of a beneficiary under your will. 
Death or disability of your Executor. 
Is joint tenancy a substitute for a will?

A joint tenancy with right of survivorship is a method of owning property with another person. At the death of one owner, the other owner becomes the full owner of the property. The property isn't part of the decedent's estate, and doesn't go into probate.

There are tax implications and simple ownership issues for a joint tenancy.

A joint tenancy is not the equivalent of a will. A will can do a number of other things. A joint tenancy creates a situation where the other joint tenant will get the whole property at the decedent's death. But if you give your brother Bob an interest in a joint tenancy on your home, Bob could sell his interest or his creditors could go after his interest.

    • Why must an estate go though court?

So that the decedent's affairs can be legally concluded. The court oversees the probate. If there is real property, someone will need legal authority to transfer the property to the heirs. If the estate is producing income, taxes will have to be paid. The creditors are to be paid from the estate property.

Many states have provisions for an "informal probate" which greatly reduces the requirements of interaction with the court, but doesn't eliminate the court entirely. Most every estate will have a piece of property that passes by title or deed, like a car or real property, and normally only someone with legal authority can legally transfer such property.

    • Can I dispose of my property in any way I wish?

Yes, for the most part. But if you indicated that all your property should be collected and burned, the law might not give effect to that part of your will.

You won't be able to avoid protections given to others by act of law, either. This can include your spouse's rights against the estate, community property protections, and special protections for children.

    • When should I make a will?

A person should make a will right now because no one knows what tomorrow holds. A person should review his estate plan occasionally, especially after certain events, such as marriage, divorce and winning the lottery.

Kaba Law Group, P.L.L.C. / 2015

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