September 6, 2006

Florida Probate:Executors-Claims

Within one to four months (depending on the particular state) after the executor has been appointed, he is required by law to file a "complete" inventory of the estate's assets. A Florida Probate Inventory is required to be filed within 120 days. The inventory is submitted to the court and, like all other papers submitted to the court, becomes a matter of "public record" (available to anyone who wants to look at it). Briefly, there are two reasons for the filing of the inventory. First, to indicate to the court the items of property for which the executor will later "account" to the court (tell the court in detail what he did with all these items when the estate is settled), and to let the beneficiaries, creditors, and all other interested parties know just what is included in the deceased's probate estate. If the executor delays or refuses to file an inventory, any interested party may ask the court to order him to file one, although if there are no disputes or contests, executors often file their inventories late.

The inventory will include any type of property (stock, bonds, real estate, furnishings, jewelry, copyrights, claims against others, etc.) that belonged to the deceased at the time of his death. Normally, this only includes property that stood in the deceased's name alone, but could very well also list property that was being held by someone else, such as property, for example, that the executor believed should be a part of the deceased's probate estate. Otherwise, nonprobate property, such as jointly held property, life insurance or retirement plan benefits payable to a named beneficiary, or assets in a living trust, will not be mentioned in the probate inventory.

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September 5, 2006

Making Final Arrangements -- Ceremonies

When formulating a Florida estate plan, you should contemplate body disposal and ceremonies. Writing out a statement of your preferences will likely save money and save your loved ones from additional heartache. Typically, at least one ceremony occurs when a person dies. Sometimes several ceremonies are held, either before or after burial or cremation. Most loved ones are likely to be comforted by attending a ceremony that reflects the wishes and personality of the deceased person.
Pre-Burial or Pre-Cremation Ceremonies

Pre-burial and pre-cremation ceremonies have many concerns in common. For either type of ceremony, you may wish to address:

1. the location of the ceremony
2. whether clergy should be invited to participate
3. specific music you would like played
4. preferences for a eulogy and the name of the person you would like to speak
4. directing survivors to send flowers or monetary donations.

For a pre-burial ceremony, you can also instruct whether you want your body to be present in a casket, whether you would like the casket open or closed, and whether you want your body to be wearing any particular clothing or jewelry. For a pre-cremation ceremony, you can also direct whether you want your remains present at the ceremony, either in a casket or other container, or whether you would like a photograph displayed.

Informal Gatherings

Before your body is buried or cremated, you may wish to have a simple gathering of family and friends in a casual setting. This may be either at a private home or at a social establishment such as a restaurant or an organization's quarters. If you would like to have an informal ceremony held after your death, you should ponder the concerns mentioned above.

Funerals

A traditional funeral is a brief ceremony and is most often held in a funeral home or a church. The body of the deceased person is usually present, either in an open or a closed casket. Other than these generalizations, there are no requirements in order to constitute a funeral. If the deceased person followed a specific religion, the funeral may include a blessing, mass, or prayer service. In addition to the concerns mentioned above, pallbearers and transportation also should be addressed in planning a funeral. Pallbearers are the people that carry a casket, which is usually needed to and from the place where the ceremony is held, and from a transportation vehicle to a grave site. Although you may choose as many pallbearers as you wish, the number usually ranges from four to eight. If you have a preference about the type of vehicle that will carry your body to the cemetery from the funeral ceremony, you should express that in the statement.

Graveside Ceremonies

In addition to or instead of holding a ceremony before burial, it is common to hold a short ceremony at the grave site. During such a ceremony, a religious leader may say a few prayers or a loved one may say words of farewell. If this is something you want, you should include it in your statement by describing who should be there, who should speak, and what they should say.

Memorial Ceremonies

A memorial ceremony is an informal ceremony held to remember and celebrate someone who has died. The body is not usually present because the ceremony happens some time after burial or cremation. There are no restrictions as to where memorial ceremonies may be held.

September 4, 2006

Florida Probate-Notice

Notice to Heirs and Interested Parties -- Time to Contest

In most states including Florida, after the petition for probate is filed, the Probate Court will order that notice of the petition be given to the heirs and other "interested" parties (those who may not be heirs but who may be named in the will) and, in some cases, that "publication" must be made. Publication is the placing of legal notice in the local newspaper to the effect that John Smith, a resident of Jacksonville, Florida, has died and a petition has been submitted to the court asking that his wife Jane be appointed as the executrix (or administratrix if there was no will) of his estate. The publication will also suggest that if you wish to object to the allowance of this petition, you or your attorney should file an appearance on or before a certain date. In those states that require notice, this designated date (sometimes called the "return date") is very important because if no objections to the petition are received by that date, the court will allow the petition. This does not mean if you miss the date or later discover that you should have objected that you cannot, but an objection filed after the date designated by the court as the "deadline" will be accepted by the court only if there was a good reason for the failure to file the objection within the allowed time. If adequate notice is not given as required by the state's laws, no probate may be allowed.

About a third of our states take the reverse approach and immediately allow the petition for probate and appointment of executor as soon as the will is filed, without notice to the beneficiaries. This does not mean, however, that no one can object. In fact, in those states that allow the will without notice, a person who wishes to contest the will or the appointment of an executor often has a much longer period within which to do so-usually until the estate is settled and the executor is discharged by the court.

In those states where notice and/or publication is required, the information in the newspaper publication will also be sent directly to you if you are an heir or an interested party in the estate. Obviously it must be sent to you sufficiently before the return date to give you adequate time to object to the allowance of the petition if you wish to do so.

The filing of an objection to either the allowance of the will or the appointment of the executor (or administrator) is surprisingly simple. All you (or your attorney) need to do to begin the contest is notify the court that you object. That's it. A simple letter to the appropriate court would suffice, saying something such as, "I object to the allowance of the petition of Jane Smith requesting that a certain document be allowed as John Smith's will and that Jane Smith be appointed as Executrix," (signed), Jesse smith. Naturally, you will at some point ,.from thirty to sixty days in some states, much longer in others) be required to specify just what it is you object to and why, and the laws at this stage begin to be somewhat more complex, so it would be foolhardy to attempt to go much beyond this point without an experienced lawyer. Judges are generally not sympathetic to people who try to represent themselves in will contests.

September 3, 2006

Donating One's Body to Science

Donating One's Body to Science

A dead human body is usually disposed of by burial or cremation. One alternative that benefits people outside of the funeral industry is to donate one's dead body to science. Donation to science (also know as donation to medical science) is turning over a dead body to doctors, medical students, and/or other scientists for use in their studies. The charitable goal is the advancement of science. Donation to science is usually to a medical school. The most common use of a dead body by a medical school is to teach human anatomy to the next generation of doctors and other medical professionals.

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September 2, 2006

Florida Spendthrift Trust

Florida law specifically authorizes Spendthrift provisions in a revocable living trust or irrevocable trust. A spendthrift clause in a trust prohibits transfers of a beneficiary's interest in the trust. In some jurisdictions, all income interests are automatically given limited spendthrift protection meaning that they cannot be transferred by a beneficiary or reached by his creditors unless a provision is inserted in the trust document allowing such transfers. If there is no provision allowing the beneficiary to transfer his interest, it can be reached: by a creditor that furnished necessities such as food, clothing, shelter, or medicine; in suits to enforce child support or alimony; to collect a federal tax lien; to the extent of income beyond that reasonably needed by the beneficiary for support and education; and by creditors who have a judgment against the beneficiary and can levy upon 10 percent of the income due. There is no spendthrift protection where the trustor is also the beneficiary.

September 1, 2006

Totten Trust

Under a Totten trust, a trust-like arrangement is created by a person who deposits money in a bank account and names a beneficiary. Because the depositor owes no duties to the beneficiary, a real trust (Florida Revocable trust)is not formed. However, upon the depositor's death, the account will not go through the Florida probate process but will be distributed by the bank directly to the beneficiary. Although the account belongs to the beneficiary, it can be reached by the depositor's creditors. A Totten trust is revoked if the beneficiary dies before the depositor. Revocation can also be by will, but only if the will expressly refers to the account and to the bank.

August 30, 2006

Life Insurance Proceeds, Retirement Plan Benefits

A trustor can name the trustee of a living trust or of a testamentary trust created in a will as beneficiary of his life insurance proceeds. However, if the trustee of a living trust is named beneficiary, the trust must exist at the time that the beneficiary is named. These principles also apply to retirement plan benefits.

August 29, 2006

Florida Revocable Living Trust

In many jurisdictions, Florida revocable trusts cannot be revoked unless the trustor expressly retains the right to revoke. Revocable living trusts allow a trustor to manage his assets, to plan for his incapacity, and to avoid probate. The beneficiary of the Living trust or Revocable Living Trust gains interest in the assets during the trustor's lifetime and gains possession upon the trustor's death.

A trustor can devise assets in his pour-over will to the trustee of his revocable living trust or to a trust created by someone else. Such a devise is known as a pour-over gift and is valid only if the trust was in effect prior to the will or was created at the same time as the will. The pour-over gift is made to the trust as the trust exists at the trustor's death, which includes any amendments made to the trust after the will is executed.

August 13, 2006

Living Trust: Florida Estate Planning Basics

You can avoid probate in Florida, and pass your property to your children within only a couple of months by creating a Florida Living Trust. A Living Trust is a legal entity that is separate from you as an individual. You transfer title to your major assets to this trust—like your house and your brokerage accounts. During your lives, you and your spouse serve as the trustees of the trust, which gives you the power to buy, sell, and otherwise transfer any of the assets in it. When both of you die, the assets in the trust are transferred to the beneficiaries of the trust, usually your children, without going through probate at all.

Though it costs some money now to set up a Living Trust, and takes some time to manage it, it costs about 1/10th of what the probate process will cost your estate and allows you to craft an estate plan that maximizes what you've got for the people who need it most, your kids.

April 30, 2006

Florida Estate Planning

Florida Estate Planning:

The process of preparing and planning for a persons financial, health care and personal affairs. It includes documents to designate an agent in the event of a future disability such as a Living Willl or health care surrogate to assist with health care matters if one is unable to do so, a power of attorney to help with financial matters, and wills and trusts to pass financial property to family, friends and possibly other organizations. Estate Planning can ensure that a person is able to pass their property exactly as they desire instead of how Florida law or their home state would dictate it pass and then if trusts are prepared they can direct how the property will be handled long after the grantor is dead. Estate Planning is critical for all people and not merely those with a large estate. It determines who the guardian of minor children would be, who the personal representative/trustee (if there was also a trust) would be that handles the affairs and a guardianship from having to be imposed where the court would take control. Florida probate could be avoided as well through the use of trusts and or proper designations for the way that property is held saving time and money. Also if it is a large estate money could be saved that would otherwise have to be paid for estate taxes. Once all the persons assets exceed a certain exemption amount the estate is taxed at over 40%. With proper planning substantial amounts of money can be saved.

April 24, 2006

Florida Probate Domicile Definition

Domicile is important when creating a Florida Estate Plan as well as when dealing with Florida Probate matters.

Domicile: The place that a person presently lives with the intent to remain. This is usually a persons permanent residence but if they are merely away on military service, to receive medical care or go to college for example but intend to return home to another place that they intend to return to will be the domicile. The law governing the state and county of domicile will control the disposition of the person's property upon their death. One's Domicile is important in figuring out which county a Florida Probate case is filed.

March 13, 2006

Florida Probate Claims Definition

Probate Claim:

Claims are debts of the estate. There are two types of creditors in Florida a known or reasonably ascertainable creditor and all others. For claims the Personal Representative is aware of or should be aware of a creditor in Florida has the greater of 30 days from being served or 3 months from publication to file a claim in the probate court or the claim will likely no longer be valid. For all other creditors they are limited to 3 months from publication. If there is not enough money in an estate to pay all the claims then Florida statute 733.707 would determine the order of payment.