- Asset Protection Planning
Asset protection planning involves figuring out and applying a
lawful series of techniques that protect your assets from claims of
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
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.
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
- 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
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
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!
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
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
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
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
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"
In addition to estate administration, probate courts often conduct
special judicial proceedings including adoption, conservator and trust
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
(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
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.
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
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
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
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
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
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
At Kaba Law Group, P.L.L.C., we can
assist you with the preparation of a Living 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.
The person who makes a Will is called
the Testator, if a man, or the Testatrix, if a woman.
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
- 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.
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
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
- 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
There are at least five family changes
where updating your Will is advisable:
Birth or adoption of a child or
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.