Florida Estate Planning Lawyer Blog

December 20, 2006

Florida Probate Full Administration Definition

In a Florida probate case, where there is more than $75,000 of non-exempt property and the decedent died less than 2 years ago a Full or Formal administration is required. A formal administration can be used when the assets are lower than $75,000 but one can also do a summary administration.

Formal Probate: a proceeding before a probate judge either with a will or intestacy which is not a summary administration or disposition of property without administration and is governed by Chapter 733 of Florida statutes.

December 19, 2006

Florida Fiduciary Agent Definition

by David M. Goldman

Fiduciary: This refers to a person (or entity) that serves in a representative capacity. Personal representatives, trustees, guardians, conservators, and agents under powers of attorney are all fiduciaries. A fiduciary stands in a position of confidence and trust with respect to each heir, devisee, and/or beneficiary. They are subject to a responsibility to act in the best interests of the person that they are serving on behalf of and can be sued if they act improperly.

December 18, 2006

Florida Probate Family Allowance Definition

by David M. Goldman

In Florida Probate, when the spouse of children of the decedent were being supported by the decedent they may be entitled to a family allowance.

Family Allowance:

An allowance that a surviving spouse, minor or dependent children are entitled to from his or her deceased spouse’s estate. If there is a surviving spouse this is typically given to them and may be up to $18,000. It is intended to provide some money for the spouse and family to live on during a probate administration.

December 17, 2006

Florida Probate Exempt Property Definition

by David M. Goldman

Exempt property:

Florida law (Florida Statute 732.402) provides the right of a surviving spouse or children to receive tangible personal property such as furniture and furnishings within the homestead property up to $10,000 as well as the automobiles regularly used by the decedent if they are not devised to someone else. These properties are not subject to any claims except those with perfected security interests on them. Those entitled to such designation may be required to file the probate forms to declare such property as exempt within 4 months of publishing notice of administration of the probate administration. A surviving spouse and/or children are also entitled to a designation of homestead property that the property is exempt from creditors.

December 16, 2006

Devise Devisee Definition

by David M. Goldman

In Florida probate and Florida Estate Planning the:

Devise: To give away real, personal or intangible property under a will or trust.

Devisee: An entity or a person selected in a will or trust to receive a devise.

December 15, 2006

Probate: Community Property Definition

by David M. Goldman

In Florida Probate, if an individual acquired assets while living in a community property state, those assets, their proceeds, and income received from the assets may be subject to a different distribution than assets or income that was acquired while living in a non community property state such as Florida. One way to resolve this issue is to have both spouses contribute the property to a revocable living trust.

Community Property:

Property acquired during a marriage and while living in one of the 9 community property states (see below). As a general rule, everything derived from the earnings of either spouse is shared equally by a husband and wife. Each spouse owns only one-half of the community property because the other half belongs to the other spouse. Community property rules can be modified by pre-marital and post-marital agreements made by the spouses. See also separate property, commingle, quasi-community property, and commingle. Florida law is a separate property state. Property that was Community property may retain its character as Community Property though when someone moves from one state such as Arizona to another such as Florida.

December 14, 2006

Charitable Trust Definitions

by David M. Goldman

Florida Residents can use a variaty of Charitable Trusts with the Estate Planning and to help reduce estate taxes in their Florida Probate.

Charitable Lead Unitrust (CLUT): Income goes to charity and remainder to one’s heirs or beneficiaries. Generally for the very rich and for those whose children won’t need the income until years later when the trust ends. For example Jacklyn Kennedy Onassis used this to save taxes when she was seeking to benefit John Kennedy Jr. and Carolyn Kennedy.

Charitable Trust – One of several different types of charitable trusts, including Charitable Lead trusts and Charitable Remainder Trusts, established to benefit a particular charity or the public. Typically charitable trusts are established as part of an estate plan to lower or avoid imposition of Federal (and some states’) estate and gift taxes and/or to save capital gains tax. It can be a win win situation since the donor is able to achieve a tax reduction while still providing for a very worthwhile charity that provides a great service to the public. When this is done during life an income tax deduction is available then the property is out of the estate for estate tax purposes or will generate a deduction to remove it. Some of this tax saving is often the put into the premiums for a life insurance policy as a wealth replacement technique. The insurance policy can be designed so the payment of the premiums will not result in a gift and the value of policy is not included in the estate. Used in this combination the donor is able to provide for a gift to charity through the charitable trust they can still receive income from the trust and despite their gift to charity their children can end up with as much and in some cases more money then if no charitable trust planning had been taken.

December 13, 2006

Florida Probate Beneficiary Definition

by David M. Goldman

Beneficiary:

In Florida Estate Planning and Florida Probate context this is a person entitled to receive property that was left to them by a will or trust or as a named beneficiary. This is contrasted by a person who receives property merely because of their family or marital relationship to the decedent which would be known as an heir. It may also include someone who is a named beneficiary of property such as a life insurance policy or a retirement account.

December 12, 2006

Florida Probate Attorney-in-Fact Definition

by David M. Goldman

Attorney-in-Fact:

The person selected to have the authority to act on the behalf of a principal. An attorney-in-fact can be any adult that the principal selects. (He or she need not be a Florida lawyer.) Typically, people appoint an attorney-in-fact in a power-of attorney, granting the attorney-in-fact the power to transact business (enter into agreements, contracts, make transfers of property, etc.) in accordance with the power-of-attorney. The authority of the attorney-in-fact cannot last beyond the life of the principal. In most cases a power of attorney expires if the principal becomes disabled or incapacitated. Florida allows for a Durable Power of Attorney that can become effective upon a disability, an occurrence of an event, or at the time that the document is signed. Florida law provides that a durable power of attorney is not impacted by a persons subsequently disability. The agent can also use this power to help the principal qualify for Florida Medicaid.

December 11, 2006

Florida Probate Assets Definition

by David M. Goldman

Assets Subject to Florida Probate Administration:

Refers to assets that are in the sole name of the decedent and therefore need to go through probate so the title can be changed to those entitled to receive them. Assets owned jointly with another as joint tenants with right of survivorship or with a spouse through tenancy by the entireties, property with a designated beneficiary such as a life insurance policy, IRA or other retirement plan account or property that is designated to be Transferred on Death to a specified person are not part of the probate estate and therefore will not be subject to probate administration. It is a good idea to avoid probate administration in Florida because of the additional time and cost it takes to receive the property.

Even though these assets may not be subject to Probate, they may be included in the decedent’s estate for Estate Tax Purposes.