Florida Estate Planning Lawyer Blog

In Florida an encumbered property shall be entitled to have the encumbrance on the property paid at the expense of the residue of the estate only when the will shows that intent. A general direction in a will to pay the debts does not show that intent (Florida Probate Code Section 733.803 , Florida Statutes (2002))

In a recent case a Personal Representative tried to make the argument that since the debt was paid off a mortgage during the probate proceeding and that the above rule only applied if the debt was in place at the time of the distribution. In re Estate of Woodward (Fla. 2d DCA Apr 09, 2008)

The court said that the PR could not rewrite the decedents will and pay off the mortgage. The Florida Probate Code makes it clear that without a specific instruction in the will the property was to pass with the encumbrance.

If you are a PR or a beneficiary of an estate in Florida and you have a question about whether you can pay off a mortgage, Contact a Florida Estate Planning Lawyer to discuss your circumstances.

Hemandez v. Hernandez, 946 So.2d 124 (Fla. 5th DCA January 19, 2007)

A trial court refused to appoint the decedent’s son as personal representative, despite the fact the decedent had nominated a son in his last will, instead appointing an unrelated attorney. The only basis for the courts ruling was that there was animosity between the nominated personal representative and his brother. Citing the absence of any evidence that the nominated personal representative does not meet the statutory criteria to qualify, and that there are no other "exceptional circumstances," the appellate court reversed the trial court.

Vazpuez v. Bvrski, 32 Fla. L. Weekly D2415 (Fla. 2d DCA October 10, 2007)

Prior to his death, a decedent entered a contract to sell real property. The decedent died prior to closing on the contract. The purchaser filed a Petition for Administration in which he expressly alleged the obligation based upon the purchase and sale agreement. The purchaser subsequently filed a Petition for Appointment of Guardian Ad Litem to represent the interests of unidentified heirs, and again alleged the obligation based upon the purchase and sale agreement. The personal representative of the estate subsequently filed a petition for authorization to sell the real property pursuant to the contract.
The guardian ad litem objected claiming, inter alia, the purchaser had failed to file a claim in the estate. The trial court agreed and denied the request for authorization to sell the property.

On appeal, the Second DCA reversed, finding that the initial petition for administration and subsequent documents filed in the probate proceeding, while defective as to form, sufficiently stated the character and extent of the claim and were substantially sufficient to place interested persons on notice of the claim.

A paycheck of a decedent belongs to the Decedents estate. Florida Employers should not cancel nor refuse to issue paychecks for employees who die. Florida Employers should follow their normal procedures. If no one checks on the status of the paycheck, it would be a good idea to send notice to their address that the check is being held for their estate. This gets more complicated with direct deposit where the funds could go to the wrong person. The decedent could have a joint account with someone who was not the same person who would take under the will.

If you have questions about receiving or what to do with the earned but unpaid income of a decedent in Florida you should contact a Florida Estate Planning Lawyer who is familiar with Florida Business Law.

Fox Business has an article on A New and Smart Way to Leave Your IRA to a Minor where they discuss the importance of reviewing beneficiaries on all acounts including insurance, annuities, and retirement plans.

They discuss leaving a percentage of the account rather than a dollar amount as this can cause complications if there are not enough assets in the account.

"If you don’t name someone in your will to act as “financial guardian” for your granddaughter, then your IRA will end up in probate court with a judge making the decision. And it might not be the person you’d want. (Your son-in-law, for instance.)"

Not only that, once the probate court is involved, it can get very expensive, depending upon the laws of the state where the minor lives. “The court gets joint jurisdiction,” says Goldberg. It can require the guardian to post bond and prepare annual reports on how the money was spent. You may need pre-approval each time you want to take a withdrawal. The court could require that the money be taken out as a lump sum, negating the benefits of “stretching” withdrawals over your granddaughter’s life expectancy.

To avoid the jurisdiction of the probate court, you can leave your IRA to a trust instead of directly to your granddaughter. As the beneficiary of the trust, she would still receive all of the benefit of your IRA. You get to appoint a trustee- which can’t easily be changed by a court- and this individual would take the annual required distributions from your IRA. The money goes into the trust and, based on the conditions you set, it can either be paid out to cover some of your granddaughter’s living expenses or accumulated to pay for college.

The Florida Bar has released consumer information on Florida Probate.

One of the most common questions deals with the distributions of a persons estate when is no will in a Florida probate case.
Contrary to the belief of some, the decedent’s assets are not turned over to the State of Florida unless no intestate heirs can be found. If there is no will, the assets of the decedent will be distributed to the intestate heirs as follows:

• Surviving Spouse and No Lineal Descendants. If there is a surviving spouse and no lineal descendants, the surviving spouse takes all.

• Surviving spouse and lineal descendants.

1. If there is a surviving spouse and one or more lineal descendants (with the lineal descendants all being the lineal descendants of the surviving spouse as well as the decedent), the surviving spouse receives the first $60,000 of the probate estate plus one-half of the rest of the probate estate, and the lineal descendants share the remaining half.

2. If there is a surviving spouse and one or more lineal descendants (one or more of which lineal descendants are not also lineal descendants of the surviving spouse), the surviving spouse receives one-half of the probate assets and the lineal descendants share the remaining half.

• No Surviving Spouse, But Lineal Descendants. If there is no surviving spouse, but there are lineal descendants, the lineal descendants share the estate, which is initially broken into shares at the children's level, with a deceased child's share going to the descendants of that deceased child.

• No Surviving Spouse, No Lineal Descendants. If the decedent left no surviving spouse or lineal descendants, the probate property goes to the decedent's surviving parents, and if none, then to the decedent's brothers and sisters and descendants of any deceased brothers or sisters. The law provides for further disposition if the decedent is survived by none of these.

• Exceptions to Above. The above provisions are subject to certain exceptions for homestead property, exempt personal property, and a statutory allowance to the surviving spouse and any lineal descendants or ascendants the decedent supported. Regarding homestead, if titled in the decedent's name alone, the surviving spouse receives a life estate in the homestead, with the lineal descendants of the deceased spouse receiving the homestead property upon the death of the surviving spouse. If there are no lineal descendants, the surviving spouse receives full ownership of the homestead outright.

For an evaluation of a Florida Probate Case please contact a Florida probate Lawyer.

The Florida Bar has released consumer information on Florida Probate.

One of the most common questions deals with the personal representative and their role in a Florida probate case.

The personal representative is the person, bank or trust company appointed by the court to be in charge of the administration of the estate. The generic term "personal representative" has replaced such terms as "executor, executrix, administrator and administratrix."

The personal representative is directed by the court to administer the estate pursuant to Florida law. The personal representative is obligated to:

• Identify, gather, value and safeguard probate assets.
• Publish a "notice to creditors" in a local newspaper, giving notice to file claims and other papers relating to the estate.
• Serve a "notice of administration" on specific persons, giving information about the estate administration and giving notice of requirements to file any objections relating to the estate.
• Conduct a diligent search to locate "known or reasonably ascertainable" creditors, and notify them of the time by which their claims must be filed.
• Object to improper claims and defend suits brought on such claims.
• Pay valid claims.
• File tax returns.
• Pay taxes.
• Employ necessary professionals to assist.
• Pay administrative expenses.
• Distribute statutory amounts or assets to the surviving spouse or family.
• Distribute assets to beneficiaries.
• Close probate administration.

The Florida Bar has released consumer information on Florida Probate where they describe many of the issues related to Probate in Florida. They discuss the following:

1. WHAT IS PROBATE?
2. WHAT ARE PROBATE ASSETS?
3. WHY IS PROBATE NECESSARY?
4. WHAT IS A WILL?
5. WHAT HAPPENS TO PROBATE ASSETS IF THERE IS NO WILL?
6. WHO IS INVOLVED IN THE PROBATE PROCESS?
7. WHERE ARE PROBATE PAPERS FILED?
8. WHO SUPERVISES THE PROBATE ADMINISTRATION?
9. WHAT IS A PERSONAL REPRESENTATIVE, AND WHAT DOES THE PERSONAL REPRESENTATIVE DO?
10. WHO CAN BE A PERSONAL REPRESENTATIVE?
11. WHO HAS PREFERENCE TO BE PERSONAL REPRESENTATIVE?
12. WHY DOES THE PERSONAL REPRESENTATIVE NEED AN ATTORNEY?
13. HOW ARE ESTATE CREDITORS HANDLED?
14. HOW IS THE INTERNAL REVENUE SERVICE ("IRS") INVOLVED?
15. HOW IS THE FLORIDA DEPARTMENT OF REVENUE INVOLVED?
16. WHAT RIGHTS DO THE SURVIVING FAMILY HAVE IN THE PROBATE ESTATE?
17. WHAT RIGHTS DO OTHER POTENTIAL BENEFICIARIES (OTHER THAN THE SURVIVING SPOUSE AND CHILDREN UNDER CERTAIN CIRCUMSTANCES) HAVE IN THE PROBATE ESTATE?
18. HOW LONG DOES PROBATE TAKE?
19. HOW ARE FEES DETERMINED IN PROBATE?
20. WHAT ALTERNATIVES ARE AVAILABLE TO FORMAL ADMINISTRATION?
21. WHAT IF THERE IS A REVOCABLE TRUST?

If you have questions about a Florida probate case please contact a Florida Probate Lawyer.

Mitchell Port a California lawyer posted a link to an article on the California Tax Attorney Blog about an article on the State Bar Website which provides information on estate planning. Although this is a California bar website, many of the same issues and considerations are important to Florida residents interested in Florida Estate Planning. Much of the information is also found on The Florida Estate Planning Lawyer Blog which primarily deals with Florida issues.

1. What Is Estate Planning?
2. What Is Involved in Estate Planning?
3. Who Needs Estate Planning ?
4. What Is Included in my Estate?
5. What Is a Will?
6. What Is a Revocable Living Trust?
7. What Is Probate?
8. To Whom Should I Leave My Assets?
9. Whom Should I Name as My Executor or Trustee?
10. How Should I Provide for My Minor Children?
11. When Does Estate Planning Involve Tax Planning?
12. How Does the Way in Which I Hold Title Make a Difference?
13. What Are Other Methods of Leaving Property?
14. What If I Become Unable to Care for Myself ?
15. Who Should Help Me With My Estate Planning Documents?
16. How Do I Find a Qualified Lawyer?
17. Should I Beware of Someone Who Is a "Promoter" of Financial and Estate Planning Services?
18. What Are the Costs Involved In Estate Planning?

If you or a family member fees that a Florida Estate Plan will benefit you please contact a Florida Estate Planning Lawyer.

In Florida, the following classes of people are not qualified to serve as a personal representative of an estate:

(a) Has been convicted of a felony.
(b) Is mentally or physically unable to perform the duties.
(c) Is under the age of 18 years.

If the person named as personal representative n the will is not qualified, then letters of administration appointing the executor or personal representative shall be governed by Florida Statute Section 733.301

If you need help with a Jacksonville Probate Case or Florida Probate Case Please contact a Florida Probate Lawyer or Attorney.

Often in the process of Florida Estate Planning, Florida Elder Law, or Florida Probate I get asked about the effects of Florida's Spousal Share Statutes. The statutes reserve 30 % of the decedents estate for a spouse in the event that the decedent did not provide at least that amount in their will or other Florida Estate Planning Documents. This right can be waived by the spouse in pre or post nuptial documents. Often for wealthy clients, or those who are legally seperated but not divorced the spousal share can become a big issue. If you think that a spousal share might be an issue with your estate planning, you should discuss it with a Florida Estate Planning Lawyer.

Last week a Florida Appeals Court looked at, Whether Florida's Spousal Share Statutes were constitutional or not?

Generally Florida Statutes are constitutional unless they are not rationally related to furthering a valid governmental objective. Lane v. Chiles, 698, So.2d 260, 262 (Fla 1997) In this case the court looked at whether the potential loss of property rights were rationally related to providing a share in the assets of the decedent.

The Florida Appeals Court upheld the statute and found that the statute was rational related to the purpose. The Florida Probate Litigation blog has an excellent analysis of the case In RE Estate of Magee Download file.

As a Jacksonville Estate Planning Lawyer, I learned that Florida did not recognize common law marriages. About a week ago, the founding partners of the law firm I work at, came into my office and asked me about an estate plan involving a couple that were married under the common law many years ago.

Later I discovered that common law marriages prior to 1969 were valid in Florida. I asked some divorce Lawyers some questions and learned, that once married under the common law, you must still be divorced in a court. The divorce is the same process as with a traditional marriage.

Then I began to think that with the number of people who separate and never get divorced, there must be some estate plans had the potential for disruption because of an unreported common law marriage.

For example, a Husband and Wife were married under common law in Florida prior to 1969. They are later separated but not officially divorced. There would not be an official record of their marriage, so when one dies, there is an opportunity for the property of the estate to be distributed incorrectly.

If you were married through common law and now live in Florida It is important for you to have a Valid Florida Will that represents your wishes, if you are sepearted from your spouse and married either under the common law or by the state, you need to evaluate your Florida Estate Plan to make sure you assets are distributed as you desire.

Florida has some unique benefits for the spouse, if you were married under the common law and not divorced in a court, and your spouse died in Florida, you are probably entitled to some or all of your spouses assets. You should talk with an Jacksonville Florida or other estate planning attorney where your spouse lives or where your spouse died.

One problem I have seen in Florida probate cases, and Florida Estate Planning was recently written about by a Massachusetts Estate Planning Lawyer, Leanna Hamill who Practices in Estate Planning and Elder Law. This article was also covered by the Elder Law Professors Blog

In her review of the Walls Street Journal article, Paperless World Can Leave Heirs in the Dark, she states that the article outlines the dangers of keeping your records on your computer.

One of the main problems is that you may not have paper copies, for your Personal Representative to review. Without this information it may be difficult or impossible to compete an accurate inventory during the probate or administration of the decedents estate.

I have previously touched on this in a several articles about Florida Estate Planning and Digital Assets. Those articles cover some of the actual problems and ways in which various online services deal with death, and some of the problems that can result including who has a right if any to access the decedent's information which is stored online.

If you use a computer, you need to consider having a Florida Estate Plan that deals with Digital Assets, paperless transactions, and details your assets for those who have to administrate your estate.

When you die, someone has to know hot to determine or what the details of your financial life are

It is important to make a comprehensive list of assets, liabilities, life insurance policies, power of attorney, Florida will, credit cards, details of bank accounts and all other important financial information.

The problem is that once you pass away, an executor or personal representative has to go through all of your document to figure out where assets may be located.

Recently a range of self-help products have emerged. The paper, and computer based products are available in many office supply stores. Many people who have a Florida Will or other Florida Estate Planning Documents, do not have a system for keeping the other information organized so that after passing, the Florida Probate process can be simplified.

Think about someone unfamiliar with your filing system trying to figure out where you have banks, stocks, Cd's, private investments, loans, debts, and everything else you keep in your mind but not on paper. Often the lack of an organized system increases the cost of the Fees associated with using a Florida Probate Lawyer.

Your Florida Estate Planning Lawyer, should be able to give you advise on what you need to make a list to simplify the Florida Probate process.

With Florida Estate Planning it is important to consider the effects of a gun on the probate process.
Neil E. Hendershot a Professor at Widener University School of Law in Harrisburg and author or PA Elder, Estate & Fiduciary Law Blog, had a Student submit an article regarding the possession and use by elderly persons of firearms. The article has a great title "I Bequeath my machine gun to . . ."

After reading this article, it is even more apparent that one who owns Class 3 Weapons, needs to be conscious of the effect of their demise on their Personal Representative and/or heirs.

Uncertainty in proper disposition of such a firearm could lead to one’s client being convicted of possession of an unregistered firearm, punishable by up to 10 years, $250,000 in fines and the forfeiture of the weapon and any “vessel, vehicle, or aircraft” used to conceal or convey the firearm.

This article discusses the process of determining if and to whom a firearms is registered. What to do with an unregistered firearm, the preferred procedures for the destruction of specific machine guns. The benefit of destruction compared to turning them in. ( The parts are valuable, and the ban may be lifted one day).

No matter what state you are in, if you or someone you know has a Machine Gun, or other weapon regulated by the National Firearms Act (NFA), they should speak to an Estate Planning Attorney or Florida Probate Attorney who is familiar with the Act to protect their estate, Personal Representatives, Trustees, and Beneficiaries from the penalties associates with the wrongfull possession or transfer of a weapon in violation of the NFA.

A Florida NFA (Gun / Firearms) Revocable Trust may be the solution for you.

On September 13, 2007, Professor Gerry Beyer posted an entry on the Wills, Trusts & Estates Prof Blog, which he edits, entitled "Dead People With Guns", referencing this post: One of the growing estate planning niches is preparing for the death of gun owners and handling the estates of gun owners.

Here are two sites which have detailed information about the issues and the solutions:

Neil E. Hendershot, "I bequeath my machine gun to . . ." , PA Elder, Estate & Fiduciary Law Blog, Sept. 12, 2007: * * *

David M. Goldman, Florida Gun Trusts or National Firearms Trust , Florida Estate Planning Lawyer Blog, July 30, 2007, Wood, Atter, & Associates, National Firearms Gun Trust: * * *

The second site discusses the legal tool of a "Firearms Trust" (or "Gun Trust"), which provides special powers to a trustee not normally considered or granted, to carry out specified purposes of maintenance & disposition of weapons.