January 2013 Archives

January 4, 2013

Recent Florida Law Changes Make having a Will More Important.

What happens if I die without a will in Florida?

Florida probate law has changed recently with regard to people who die intestate (without a will) and are married.

If you have no descendants, your entire intestate estate will go to your spouse. This does not typically include your home or other non-probate assets.

If you and your spouse have descendants, and your spouse has no descendants other than those which are common to you, then again your spouse receives your entire intestate estate.

If you have children from a previous relationship your spouse will only receive one-half of your estate. The same is true if your spouse has children that are not yours and you have some children in common.

If you own a homestead with your spouse then the spouse will receive the homestead outright. If your homestead was only owned by you then your spouse will receive a life estate or may elect to take 50% of the home as tenants in common with your children. If your spouse does not elect to take the 50% ownership then your children will receive the remainder of the home.

This new election that the spouse has can create some problems or unexpected results that can be dealt with by using a will or trust in Florida.

January 3, 2013

When is IRS Form 706, United States Estate Tax Return, Due?

While personal income tax returns and gift tax returns for taxable gifts made during 2011 are due on or before April 17, 2012, estate tax returns for decedents who died during 2011 are not due on April 17, 2012.

If a decedent who died in 2011 is required to file a federal estate tax return or a generation-Skipping Tax Return, it is due on or before nine months after the decedent's date of death.

For example, if the death occurred on April 1, 2011, then IRS Form 706 will be was Due on or before January 1, 2012. If they died after April 1st you still have time to file the returns.

Do I need to file a return? This information will help you to determine if Form 706 is needed for a decedent who died in 2011:

If the Gross estate exceeds $5 million the a Form 706 must be filed for the estate of every U.S. citizen or resident who died in 2011 and whose gross estate, plus adjusted taxable gifts and specific exemption, is more than $5 million. To determine whether a return must be filed, add:


  1. The adjusted taxable gifts (under section 2001(b)) made by the decedent after December 31, 1976;

  2. The total specific exemption allowed under section 2521 (as in effect before its repeal by the Tax Reform Act of 1976) for gifts made by the decedent after September 8, 1976; and

  3. The decedent's gross estate valued at the date of death. (See Instructions for Form 706 for additional information.)


Should I Make the portability election. Even if the value of an estate of a decedent who died in 2011 does not exceed $5 million, the surviving spouse will want to consider filing IRS Form 706 in order to take advantage of the election to use the deceased spouse's unused estate tax exemption.

Note: The estate tax exemption has dropped to 1 Million for 2013 so this will apply to many more people unless congress acts to change the estate tax and gift tax exemptions this year

January 1, 2013

Will Contest and Summary Administration

In Florida when a Summary Administration is used to Probate an estate the Florida Probate must be converted to a Formal Administration to allow for a will contest.

There are time limits to object to a will so it is important to file documents timely. If the probate has not been opened in Florida it is possible to file a caveat. A caveat is a notice that is file in the probate court that allows you an opportunity to object to a will or the appointment of a personal representative. It is basically a notice to the court to give you an opportunity to respond before the court appoints a PR or admits the will for probate in Florida.

It is more difficult to remove a PR after they are appointed so if you feel that something is wrong, it is a good idea to file a caveat as soon as possible.

One a Florida Summary Administration Probate has been opened, it will need to be converted to a Formal Administration before you can object to the Last Will and Testament on grounds of undue influence.

While objections are not common in a summary administration there are circumstances when they may make financial sense. If you feel that a will was obtained by undue influence or created when someone lacked the capacity to create the will, you should contact a Jacksonville Estate Planning Lawyer or fill out the contact us form on this page.