Recently in Probate Category

December 26, 2013

How can I find a copy of my parent's will or life insurance?

We get many calls from children who want to know where they can get a copy of their parent's will or find out if they had life insurance.

First, if your parent is alive, you have no right to demand or see a copy of your parent's will. While it would be a good idea for them to share it with their children there may be reasons why they have chosen not to.

If your parent is incapacitated, and you acting as the agent under a power of attorney or the guardian over the property, you may look for these documents in order to preserve your parents assets or provide for them. A guardian or agent must be careful to avoid taking actions that could be considered changing the beneficiaries. They may also not create a will for someone else.

If your parent has passed and their will is not able to be found you may look to see if your parent had any bank accounts where they may have a safe deposit box. See if they have any documents which indicate if they had an attorney. If you still cannot find the will, you may also check with financial advisors or stock brokers to see if they can help you find out who your parent's lawyers was. Many people think that they can search the court records to find a parent's will. In Florida, one can no longer file their will with the court before death.

There is no easy way to find out if your parent had life insurance unless you can find a copy of an old bill. To do this you might check their bank records over the last 12-24 months and continue to watch their incoming mail for tax statements and account updates.

If there is no will or a valid will cannot be found, Florida does have a system for distributing assets to the person's surviving spouse, children, or other close family members. If you would like to learn more about probate in Florida, you may want to request the Florida Probate Handbook or contact us for more information.

September 3, 2013

Who has the right to make funeral / burial arrangements in Florida?

Thumbnail image for probate.jpgWho has the right to make funeral / burial arrangements in Florida?

Florida Statute 497.005 defines human remains and who is the legally authorized person to dispose of the human remains.
38) "Human remains" or "remains," or "dead human body" or "dead human bodies," means the body of a deceased human person for which a death certificate or fetal death certificate is required under chapter 382 and includes the body in any stage of decomposition.
(39) "Legally authorized person" means, in the priority listed:

  • (a) The decedent, when written inter vivos authorizations and directions are provided by the decedent;
  • (b) The person designated by the decedent as authorized to direct disposition pursuant to Pub. L. No. 109-163, s. 564, as listed on the decedent's United States Department of Defense Record of Emergency Data, DD Form 93, or its successor form, if the decedent died while serving military service as described in 10 U.S.C. s. 1481(a)(1)-(8) in any branch of the United States Armed Forces, United States Reserve Forces, or National Guard;
  • (c) The surviving spouse, unless the spouse has been arrested for committing against the deceased an act of domestic violence as defined in s. 741.28 that resulted in or contributed to the death of the deceased;
  • (d) A son or daughter who is 18 years of age or older;
  • (e) A parent;
  • (f) A brother or sister who is 18 years of age or older;
  • (g) A grandchild who is 18 years of age or older;
  • (h) A grandparent; or
  • (i) Any person in the next degree of kinship.

In addition, the term may include, if no family member exists or is available, the guardian of the dead person at the time of death; the personal representative of the deceased; the attorney in fact of the dead person at the time of death; the health surrogate of the dead person at the time of death; a public health officer; the medical examiner, county commission, or administrator acting under part II of chapter 406 or other public administrator; a representative of a nursing home or other health care institution in charge of final disposition; or a friend or other person not listed in this subsection who is willing to assume the responsibility as the legally authorized person. Where there is a person in any priority class listed in this subsection, the funeral establishment shall rely upon the authorization of any one legally authorized person of that class if that person represents that she or he is not aware of any objection to the cremation of the deceased's human remains by others in the same class of the person making the representation or of any person in a higher priority class.

May 14, 2013

The Advantages of Living Trusts: 6 Ways a Living Trust can Benefit Your Estate Plan

Thumbnail image for Last Will and Testament 1.jpgProbate can have the reputation of being a nightmare, and many hate the idea of going through this process. If the idea of transferring your assets through probate daunts you, then you will be happy to know that living trusts can avoid probate. The probate process is usually more expensive and time consuming than having a living trust set up to transfer assets. Moreover, a living trust has many more advantages than skipping probate. An estate-planning attorney can discuss with you the specific advantages that a living trust will bring to your estate plan and can assist you with setting up one to effectively address your needs and the needs of your beneficiaries. Meanwhile, here are 6 general benefits of using a living trust in your estate plan.

BENEFIT #1: A living trust can protect the assets in the trust for certain beneficiaries.
Sometimes, the intended beneficiaries are not capable to handle their full inheritance. For example, many states do not allow minors to own property. And even if a child was old enough to receive property legally, a full inheritance can detriment the child by tempting him to quit school or start an early retirement. Moreover, there are those beneficiaries who will spend all their inheritance at their first opportunity. A living trust can prevent any of these scenarios by allowing you to appoint a trustee to keep your assets for the benefit of your beneficiaries. The trustee would invest the assets in your trust for your beneficiaries' benefit until they are capable of handling their inheritance.

BENEFIT #2: A living trust can reduce and even eliminate estate taxes.
Even though there are no provisions in the federal tax code that exempt living trusts from estate taxes, living trusts are often used by people and families to take advantage of certain deductions and credits that are allowed under tax laws.

BENEFIT #3: A living trust can help manage your assets upon incapacity.
If you become incapacitated without having done some prior estate planning, then your loved ones may have to file an application with the probate court to have a guardian appointed to manage your property. This can be a wrenching experience because your assets and affairs will have to be prepared before total strangers. A living trust allows a successor trustee to take over the management of your assets if you ever become incapacitated.

BENEFIT #4: A living trust can avoid probate.
The assets in your living trust will not go through probate when you die. However, your outstanding debts and taxes will have to be paid. The reality is that avoiding probate might not be a viable option for some individuals. Discuss the factors of your case with an estate-planning attorney to find out whether or not skipping probate is a viable option in your case.

BENEFIT #5: A living trust can avoid a Will contest.
A Will is more likely to be contested than a living trust. This is so because a Will goes into effect when the person dies, whereas a living trust goes into effect as soon as the trust instrument is signed and usually lasts sometime after the grantor's death. To challenge a Will, an interested party needs only to show that the testator was either incompetent or under undue influence when he or she signed the Will. To challenge a living trust, on the other hand, an interested party may have to show that the grantor was incompetent or under undue influence when the trust was signed, when each asset was transferred to the trust, when each investment decision was made, and when each distribution was made to the owner or to anyone else. This is much harder to do than challenging a Will.

BENEFIT #6: A living trust can offer you privacy.
Probate is a public process. Therefore, theoretically, anyone can go into the probate court and look at a specific decedent's estate file. Unscrupulous sales persons often go through estate files to locate grieving heirs to prey on. A living trust can prevent this because it is private, does not get filed with the probate court, and no one gets to look at it unless the grantor or trustee allows it.

Contact an estate-planning attorney to assist you with setting up a living trust today. For an estate-planning attorney in Florida, call the Apple Law Firm at (904) 685 - 1200 or click the "Contact Us" tab at the top of the page.

May 9, 2013

The Future of Estate Planning: The Multigenerational Life Plan

Over the last year I worked with an intern in our office of a Law Review article for Texas Tech University. This article describes problems with current estate planning and takes the premise that most estate planners have become lazy because of advancements in technology. That is, most only ask their clients about issues that their software is capable of addressing. We identify 6 primary areas that are not addressed in most estate plans:

  1. Firearms;
  2. Digital Assets;
  3. Asset Protection;
  4. Life Planning;
  5. Controlling from the Grave; and
  6. Pets

The citation for the article is
David Goldman & Charles Jamison, The Future of Estate Planning: The Multigenerational Life Plan, 5 Est. Plan. & Community Prop. L. J. 1 (2012).

Continue reading "The Future of Estate Planning: The Multigenerational Life Plan" »

May 3, 2013

What Is Involved in Florida's Probate Process? Some Rules of Probate in Florida that You Should Know

FreeFloridaProbateHandbook-small-thumb.jpgThe grapevine is full of rumors about probate. Some of them are true, but many of them are more than misguided. The fact that each state has a different probate procedure makes the process harder to understand. If you want to get a general grasp about some basic rules of probate in Florida, then this blog is for you. However, you should discuss the facts of your case with an estate-planning attorney before deciding whether or not probate is a viable option for your estate plan or if you are faced with going through this process.

1. Estate Taxes vs. Probate Fees - Estate taxes are paid to the IRS if an estate exceeds a specific dollar limit, which varies each year. For example, in 2012 estate taxes were owed for estates that exceeded $5,120,000. Probate fees are paid to the attorney and executor (a.k.a personal representative) of an estate for any assets that go through probate. Additionally, there are filing fees needed to be paid to the probate court and appraisal fees for estate assets.

2. Compensation for Executor - An executor is entitled to a commission payable from the estate assets without court order as compensation for ordinary services. The commission will be based on the compensable value of the estate, which is the inventory value of the probate estate assets and the income earned by the estate during administration. A commission computed on the compensable value of the estate is presumed to be reasonable compensation for an executor in formal administration as follows:

  • a. At the rate of 3% for the first $1 million.
  • b. At the rate of 2.5% for all above $1 million and not exceeding $5 million.
  • c. At the rate of 2% for all above $5 million and not exceeding $10 million.
  • d. At the rate of 1.5% for all above $10 million.
3. Probate Bond - Probate bonds are used to ensure the accuracy and fairness of a probate proceeding. They are a type of security bond taken out by the executor of an estate entering probate and are used to ensure that the value of an estate will not be altered by the executor. A probate bond is typically used in estates that have no Will to direct the distributions of the assets, or when there is reason to believe that decedent was incompetent during the creation of his or her Will. All bonds required will be for the sum that the courts deems sufficient after consideration of the gross value of the estate, the relationship of the executor to the beneficiaries, exempt property and family allowances, the type and nature of the assets in the estate, known creditors, and liens and encumbrances on the assets.

4. Property Passing Outside Probate - Probate is necessary when a person dies owning anything in his or her name individually. However, many kinds of assets pass outside probate, for example:
  • a. Assets with beneficiary designations, like IRAs accounts and life insurance.
  • b. Joint tenancies with rights of survivorship (the right of survivorship must be expressed in the document creating the joint tenancy).
  • c. Property held in trust.
  • d. Property held as tenants by the entirety (for spouses only).
  • e. Automobiles.
For those of you who would like to learn more about probate in Florida we have a Free Florida Probate Handbook available for download

If you are faced with going through probate or are considering whether or not probate is a feasible option for your circumstances, contact an estate-planning attorney before taking any decision to make sure that the process goes smoothly. For an estate-planning attorney in Florida, call the Apple law Firm at (904) 685 - 1200 or click the "Contact Us" tab at the top of the page.

April 19, 2013

There is a Vacancy in My Trust - Appointment of a Successor Trustee in Florida

vacancy.pngEvery trust needs at least one trustee to administer the trust and to carry on its terms. If a person designated as a trustee ceases to act as one, then a vacancy in the trust occurs and it might need to be filled. Succession of trustees is perhaps one of the most common occurrences in the administration of a trust. A succession of trustee can be done by the terms of the trust, by the beneficiaries, or by appointment of the court. The overriding concept is that if one trustee ceases to act for any reason, the result depends upon the circumstances of each case. This is why it is wise to consult an estate-planning attorney to analyze all the factors affecting your case and assist you with this issue.

1. When does a vacancy occur?
A vacancy in a trusteeship occurs in the following circumstances:
· A person designated as trustee declines the trusteeship.
· A person designated as trustee cannot be identified or does not exists.
· A trustee resigns.
· A trustee is disqualified or removed.
· A trustee dies.
· A trustee is adjudicated to be incapacitated.

2. When does a vacancy need to be filled?
A vacancy in a trusteeship must be filled if the trust has no remaining trustee. If one or more co-trustees remain in office, however, then a vacancy in a trusteeship does not need to be filled.

3. Priorities in filling a vacancy in a trusteeship of a non-charitable trust.
A vacancy in a trusteeship of a non-charitable trust that is required to be filled must be filled in the following order of priority:
· By a person named or designated pursuant to the terms of the trust to act as successor trustee.
· By a person appointed by unanimous agreement of the qualified beneficiaries.
· By a person appointed by the court.

4. Priorities in filling a vacancy in a trusteeship of a charitable trust.
A vacancy in a trusteeship of a charitable trust that is required to be filled must be filled in the following order of priority:
· By a person named or designated pursuant to the terms of the trust to act as successor trustee.
· By a person selected by unanimous agreement of the charitable organizations expressly designated to receive distributions under the terms of the trust.
· By a person appointed by the court.

5. Appointment of an additional trustee or special fiduciary by the court.
The court may appoint an additional trustee or special fiduciary whenever the court considers the appointment necessary for the administration of the trust. This is so whether or not a vacancy in a trusteeship exists, or whether or not a vacancy is required to be filled.

The Apple Law Firm has experienced estate-planning attorneys that can apply the law to your particular circumstances to effectively assist you in a succession of trustee. Remember that the results in a succession of trustee depend upon the circumstances of each case. Moreover, the answer might not be as straightforward as it appears. For example, even if the terms of the trust designate a person to act as successor trustee, those terms might be invalid or the designated person might not qualify as a trustee. To contact the Apple Law Firm, dial (904) 685 - 1200 or click the "Contact Us" tab at the top of the page.

April 8, 2013

Probate: Disposition of Personal Property Without Administration in Florida

document.pngThis process lets someone who paid for a decedent's final expenses, from the funeral or from the last illness, to be reimbursed from the assets of the decedent's estate. This process is only available if the decedent did not leave any real estate and the only assets in the estate are either exempt from creditor's claims or do not exceed the total amount of the final expenses. Although this process avoids probate, it might be impractical in some cases. For example, this process can open the assets of decedent's estate to the claims of creditors, can have less favorable tax benefits, and there is a risk of unintentionally disinheriting some children from one spouse but not of both spouses. Therefore, it is important to consult with a Florida probate lawyer to help you consider the variables in your case and make an informed decision.

To apply for this process and request reimbursement, you file a form called "Disposition of Personal Property Without Administration." This form is available from the clerk of the court and on many Florida circuit courts' websites. There's a small filing fee; call ahead or check the court's website to find out the exact cost. The following is a list of the things needed to file for this process and the procedure involved in it.

What You Need

  • Petition of disposition without administration: Three pages and notarized.
  • Certified death certificate.
  • If decedent has a will, then the original will has to be filed with the verified statement unless previously filed.
  • Copy of paid funeral bill.
  • Copy of paperwork showing decedent's assets, i.e. copy of stocks, bank statement, etc.
  • Copy of last sixty days' medical expenses with receipts.
  • Consents of any additional heirs with address and notarized signature, or death certificate, if applicable.
  • Statement regarding creditors.
  • Filing fee (call ahead or check the circuit court's website to find out the exact cost)
  • An Affidavit stating that decedent was never married and did not have children may be required, if applicable.

When Filing the Petition
  1. Print the decedent's name after the words "In Re:"
  2. Print your name, address, and all the required information.
  3. Check the correct box indicating that either there is no will or that you are filing one at this time.
  4. List beneficiaries (heirs) in descending order at item no. 3. If you run out of space, you may use the back of the form, but indicate in the front of the form that you have done so.
  5. When listing estate property in item no. 3, you must provide the mailing address as part of the description. Consult Florida Statutes section 732.402 for the definition of exempt property.
  6. Attach a copy of the paid funeral bill and the last sixty days medical expenses and receipts showing payment. If the asset(s) is needed to pay the bill, the order can reflect that the proceeds go directly to the funeral home.
  7. The forms may be sworn to before the deputy clerk or a notary public. After completing the forms, file all documents with the clerk along with the filing fee. All documents will be forwarded to the judge. A plain copy and a certified copy of the Order to Distribute or Transfer Assets will be provided to you. The certified copy is to be presented by you to the financial institution

CONTACT A FLORIDA PROBATE LAWYER
Disposition of personal property without administration does not apply when the asset consists of the decedent's Income Tax return (see Florida Statutes section 735.302). Moreover, as discussed initially, some circumstances in your case might make disposition without administration impractical for your case. It is wise to contact a probate lawyer for assistance with this matter. For a Florida probate lawyer contact the Apple Law Firm at (904) 685-1200 or click the "Contact Us" tab at the beginning of the page.

April 5, 2013

Formal Administration vs. Summary Administration in Florida

chess.pngThere are to main types of probate administration in Florida: summary administration and formal administration. Summary administration can only be used when the total value of decedent's assets subject to probate are $75,000 or less, or when the decedent has been dead for more than two years. Formal administration is used for all other estates or whenever a personal representative is required for other purposes.

SUMMARY ADMINISTRATION
Steps

  1. Preparation of the documents.
  2. Publication of the notice to creditors.
  3. Determination of homestead (if applicable).
  4. Distribution of the funds to creditors and beneficiaries per court order.

Costs and Time Frame: The current court costs are around $400 and publication costs range from $30 to $300, depending on the county and news paper. However, most costs are around $200. The approximate time frame is three to five months - unless extraordinary circumstances occur, like a will contest. Decedent's estate cannot be closed while litigation is pending.
 
Pros
  • Shorter proceeding than formal administration: three to five months compared to four to twelve.
  • Less work and less expensive than formal administration.
  • Less complicated than formal administration: Summary administration involves less hoops and hurdles than formal administration.
Cons
  • A personal representative is not officially appointed: In formal administration, the appointed personal representative is given authority to request all the information he or she needs regarding the decedent's assets. Without this authority, requesting information regarding decedent's assets might be a little more challenging.
  • No letters of administration are provided: if you need letters of administration for any reason, or if the estate will be subject to litigation, you should open a formal administration
  • All assets need to be accounted for before filing.

FORMAL ADMINISTRATION
Steps
  1. Preparation of the documents.
  2. Appointment of personal representative.
  3. Publication of notice to creditors.
  4. Filing of the inventory of decedent's estate.
  5. Determination of homestead (if applicable).
  6. Distribution of the assets to creditors and beneficiaries.
  7. Closing of the estate.

Costs and Time Frame: The current costs are $400 plus publication costs that can range from $30 to $300. Depending on the county and newspaper. However, most costs are around $200. The approximate time frame is four to twelve months unless extraordinary circumstances occur: i.e. litigation. The estate cannot be closed while litigation is pending.

Pros
  • A personal representative is appointed: with authority to secure information about decedent's assets or debts.
  • Letters of administration are provided: banks and financial institutions are more comfortable with letters of administrations than with orders of summary administration.
  • Best choice when there are many known creditors.
  • Best choice when decedent's estate will be subject to litigation.
Cons
  • Longer proceeding than summary administration: four to twelve months compared to three to five months.
  • More expensive than summary administration.
  • More work required than in summary administration.

WHICH SHOULD I CHOOSE?
The answer is it depends. There are important variables to consider when making the choice. Every probate case is different, even if the differences are small. For example, some cases require letters of administration, making summary administration not a viable option. Be sure you are making an informed choice. To make an informed choice, contact a probate lawyer. For an attorney in Florida, call the Apple Law Firm at (904) 685 - 1200 or click the "Contact Us" tab at the beginning of the page.

March 30, 2013

How to Transfer the Decedent's Property in Florida to Your Name

Below is a summary of the more common ways that property is transferred in the state of Florida when someone dies.

housepuzzle.pngSomebody just died leaving you an interest in a piece of property. To reclaim your interest in the property you must prove that you own it by documenting the transfer from the estate of the decedent to you. The procedure involved varies depending on the interest held on the property by the decedent, and on many other factors.

Joint Tenancy with Rights of Survivorship
When two people own a property as joint tenants with rights of survivorship, each one of them owns an undivided interest in the property. When one owner dies, his or her title passes automatically to the surviving owner. However, the instrument creating the joint tenancy must explicitly provide for the right of survivorship. If decedent and you owned the property as joint tenants with right of survivorship, then the real property is automatically transferred to you. To reclaim your interest in the property, you just need to file with the clerk of court the decedent's death certificate.

Tenancy by the Entirety
This is a special form of joint ownership available only to married couples. A property held in this manner does not belong to one spouse individually; each spouse owns the property as a whole. Consequently, the property passes automatically to decedent's surviving spouse if it was owned as a tenancy by the entirety.

Tenancy in Common or Single Ownership
Probate is necessary if a person dies owning anything in his or her name individually. Probate is a court-supervised procedure in which the assets of the decedent are identified and gathered to pay decedent's debts and to be distributed among the decedent's heirs or beneficiaries. The following steps illustrate the distribution process of the property through probate:

1. Probate is opened.
2. Court appoints a personal representative (PR).
3. PR can use decedent's estate to pay for the costs involved in the probate procedure.
4. Court determines if the property is homestead (not subject to the claims of creditors) or non-homestead (subject to the claims of creditors)
5. PR notifies and pays decedent's creditors. If the property is non-homestead the property may be available to pay creditors' claims
6. PR distributes decedent's remainder assets to decedent's beneficiaries or heirs.

  • If decedent died with a will: You will receive a deed naming you as an owner of the property devised to you under decedent's Will.
  • If decedent died without a will: All decedent asset's will be distributed as stipulated in Florida Statutes section 732.102, 732.103, 732.104. You will receive a deed naming you as an owner of the property you are entitled to under Florida law.

7. Record the deed in the real property records of the county where the property is located.

Ancillary administration: It is the administration of a decedent estate in a state other than the one in which he or she lived. Ancillary administration might be needed when the decedent died living property in Florida and a domiciliary probate for his or her estate has been commenced in another state. To start this process, file a petition in the circuit court where the decedent's property is located. You must attach an authenticated copy of each of the following original documents:

  • The foreign will.
  • The petition for probate.
  • The order admitting the will to probate appointing the personal representative.

Keep in mind that authenticated means that each copy must have a court seal from the court where the original document was filed stating that the copy is an authenticated copy of the original.

SEEK ASSISTANCE FROM AN ESTATE PLANNING ATTORNEY
An estate planning attorney can discuss with you the options you have to dispose of your property avoiding probate. Moreover, an estate planning attorney can assist you in the process of transferring the property from the decedent to the person entitled to it. For an estate planning attorney in Florida call the Apple Law Firm at (904) 685 - 1200 or click the "Contact Us" tab at the top of the page.

March 29, 2013

How to Obtain Your Devised or Inherited Property from a Florida Resident

Thumbnail image for probate.jpgWhen someone dies, his or her assets will not necessarily be distributed automatically to those entitled to them. If a person dies with a Will that devises his or her assets to you, then probate is necessary to carry out the instructions of the Will. Similarly, probate becomes necessary when a person dies owning anything in his or her name individually. This blog discusses the things that you need to receive your devised or inherited property that is in Florida and the process involved.


INGREDIENTS

  • Decedent's original Will.
  • The Will's self proving affidavit. If it is not available, then an oath from one of the following will be required: a witness to the Will, the nominated personal representative, or any disinterested person who believes the Will is genuine.
  • Probate's filing fee and advertising costs. These fees vary based on the type of proceeding and county of the decedent's residence.

PROCEDURE
NOTE: In Florida most probate cases require hiring an attorney.

  1. The custodian of the Will must deposit the original Will in the office of the clerk of Court within ten days of receiving information that the person is deceased. The custodian should deposit the Will with the Clerk of the Circuit Court in the county where the decedent resided. The custodian must also supply the decedent's date of death or decedent's social security number to the clerk upon deposit of the Will, if this information is available.
  2. There are three basic types of proceedings to administer a decedent's estate and the one used depends on the size of decedent's estate:
    • a. Formal administration: used when there are considerable assets and it is necessary to appoint a personal representative to act on behalf of the estate.
    • b. Summary administration: used when the value of the entire estate does not exceed $75,000 or when the decedent has been dead for more than two years.
    • c. Disposition of personal property without administration: used to request release of the decedent's assets to the person who paid for final expenses such as funeral bills or medical bills that accrued in the last 60 days.
  3. Once Probate is opened and the appropriate proceeding has been selected, the court appoints a personal representative for decedent's estate. The court gives deference to the person nominated as the personal representative in decedent's Will.
  4. The personal representative is under a duty to settle and distribute the estate of the decedent in accordance with the terms of the decedent's Will and the Probate Code as expeditiously and efficiently as is consistent with the best interest of the estate.
  5. The personal representative can use decedent's estate to pay for the costs involved in probate and must notify decedent's creditors so that they can file their claims against decedent's estate.
  6. After paying decedent's creditors, the personal representative distributes the remainder of decedent's assets to the beneficiaries entitled to them.
  7. After the administration of decedent's estate has been completed, the personal representative is discharged.

What if There is Not a Will?
If there is not Will, probate might still be necessary to distribute decedent's assets. Probate proceedings are initiated by filing a petition seeking to administer decedent's estate. A filing fee will also be required. Decedent's assets will be distributed according to Florida Statutes section 732.102, 732.103, and 732.104.

Contact a Florida Estate Planning Attorney
Going through the probate process can be a frustrating and daunting scenario. The best thing to do is to hire an estate planning attorney to assist you with this issue. Moreover, an estate planning attorney can help you plan your estate to assure an efficient distributions of your assets. For an estate planning attorney in Florida, contact the Apple Law firm by dialing the number (904) 685 - 1200, or by clicking the "Contact Us" tab at the top of this page.

March 20, 2013

The Effects of Using a Deed to Transfer Real Estate Property Ownership to Avoid Probate

greenhouse.pngYou can transfer ownership of your real estate property through probate, or by signing an instrument known as a deed.1 Using a deed to transfer ownership of your real estate allows you to bypass probate, but there are some risks associated with this alternative. This blog discusses the advantages and disadvantages of using a deed to transfer ownership of your real estate property.
Advantages of Using a Deed to Transfer Ownership


  1. A transfer by deed can allow you to reserve the right to use the real estate property transferred for the remainder of your lifetime: There are different types of deeds that can be used to transfer property and each one of them serve a different purpose. Some deeds, like the life estate deed, allow you to transfer ownership of your real estate property while reserving you the right to use the property for the remainder of your lifetime.

  2. A transfer by deed can simplify the transfer of your real estate property: A deed transfers ownership of your real estate property automatically and bypasses probate. Therefore, a transfer by deed avoids you the delays and expenses of Florida probate.

  3. A transfer by deed can bypass both your creditors and your beneficiaries' creditors: Property transferred through probate is subject to the claims of your creditors and the creditors of your beneficiaries unless the property transferred qualifies as your homestead.


Disadvantages of Using a Deed to Transfer Ownership

  1. A transfer by deed can place your home in jeopardy to other's creditors: The Florida Supreme Court noted in Snyder v. Davis that there are three kinds of homestead that have the following purpose: preserve the family home for its owner and his or her heirs. One kind of homestead protects the home from forced sale by creditors. Sometimes families attempt to transfer their home by adding kids on to the house deed to avoid probate. These families face a problem when one or more of the owners mentioned in the deed do not live in the home. The problem is that the ownership percentage of the person not living in the home is subject to the claims of his or her creditors. The problem is aggravated when no ownership percentage is specified in the deed since Florida assumes that there are equal percentages of ownership to each person named on the deed. If a creditor takes an ownership in the home, then he can force the sale of the whole property. Therefore, adding someone to your house deed to transfer ownership of the property avoiding probate might leave you with nothing to transfer. The same scenario applies to those who try to transfer ownership of their house with a Florida life estate deed.

  2. A transfer by deed brings adverse tax consequences: There may be gift taxes or penalties associate with the failure to report the gift if the value is over the yearly gift tax limits.

  3. A transfer by deed can cause you to lose stepped up basis: This can cause a much greater income tax upon the sale of the property in the future.

  4. A transfer by deed might cause you to pay gift tax: If you do not receive payment for the transfer, then the IRS views the transaction as a gift and requires you to pay a gift tax. However, there are some exclusions to this tax.

  5. A transfer by deed can create a disqualifying transfer of assets for Medicaid purposes: This can be for as long as 5 years.


If you are trying to avoid probate in Florida and would like to also have protection for your homestead from creditors, not have adverse tax consequences, not lose stepped up basis, and/or not create a disqualifying transfer of assets for Medicaid purposes, you should contact a Florida Estate Planning Lawyer to discuss how to protect your homestead and the options available that deal with your circumstances and goals. To contact a Florida Estate Planning lawyer call the Apple Law firm at (904) 685 - 1200.

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.

November 6, 2012

Estate Tax Law Changes Worry Many Farmers & their Families

John Buchanan has an article in Central Florida's Agri-Leader which was published on October 24th which discusses the effects of the expiration of the estate tax exemption on farmers.

Many farmers end up loosing farms because of estate taxes and the inability of their families to become liquid enough to pay the estate tax bills. Over the past few years, the estate tax exemption has been high enough that many small farmers have not had to worry about this effect, but that could all change on January 1, 2013.

I was interviewed by John Buchanan about some of the potential solutions that small farmers could use to help insulate against the huge tax changes set to take effect next year.

One solution involves the purchase of life insurance to offset the taxes that will become due. Another solution involves a gifting strategy that takes advantage of the 5 million dollar gift tax exemption that is also set to expire 12/31/2012. There are other strategies, but you should discuss your objective and circumstances with an estate planning lawyer to see which options make sense for you and your family.