Using a Durable Power of Attorney in Florida
When you have been appointed as an agent by a person to act as an attorney-in-fact for that person, you must keep three important ideas in mind.
Agent Authority
General Guidelines for Successor Trustees in Florida
The management of a revocable living trust is intended to be a simple, private, inexpensive matter handled by the Settlor and those people the Settlor chooses, without court intervention. It is always a good idea to seek professional advice when taking over the management of another persons trust. Generally the roles, responsibilities, and duties can be explained quickly and stop many problems before then create harm.
The following are general guidelines that you should supplement with the specifics of the trust you will be managing; these guidelines are not intended to be specific advice for any particular situation. These guidelines apply to successor trustees who find themselves in charge of a trust.
There are three situations in which you may have assumed the title of Trustee: 1) The Settlor has been determined to be incapacitated as defined in the Trust; 2) The Settlor has died; or 3) The Settlor has resigned as the Trustee and either appointed you as the Successor Trustee or named you the Successor Trustee in the Trust document.
An Overview
Regardless of why or how you came to be trustee, all successor trustees should keep a few general ideas in mind.
- You are handling someone else’s property, not your own. When you act as a Trustee you should follow the rules and laws that apply to the trust. These rules and laws come from two sources. The first source is the trust document. In that document you will find many paragraphs that describe what you are allowed to do, what you are required to do, and what authority you have to exercise your own discretion in making decisions. The second source is the state and federal laws that apply to the trust.
A successor trustee should immediately familiarize himself or herself with the trust document, and any amendments to the trust, to be certain that the successor trustee knows what is expected and what is required by way of management, distributions, reporting, accounting, and any other specific duties that the trust might place on the trustee.
- You will be required to account for and explain your decisions and activities in the management of the trust. You will be required to provide regular accountings to the beneficiaries of the trust, and may be required to make certain reports to the tax authorities. Detailed records will make that reporting a lot easier. Your records might include detailed checking ledgers much like you would keep for your own checkbook. The records should show the check number, date, amount paid or received, whom the payment was from or to, and the purpose of the payment. Another good idea is to keep a journal or log book of activities for the trust, in which you would make notes about what you have done and why. You should have a good initial accounting where you list the assets at the time you took over the job.
- Clear communication between the trustee and the beneficiaries can avoid future misunderstandings.
- Avoid self-dealing. Do not have your spouse or family provide services for the trust if they will be paid for their work. If you feel that you must be involved people who you have a close relationships with, you should only do so after a full disclosure of the terms and circumstances and obtaining written approval from each of the beneficiaries. A small degree of formality now can avoid a major misunderstanding later when the trustee and the beneficiary may have quite different recollections of an arrangement.
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.
Somebody 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
How to Obtain Your Devised or Inherited Property from a Florida Resident
When 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.
The Guardianship, the Guardian, and the Ward
When a person cannot take care of himself or herself, a court may appoint a guardian to take care of that person and/or that person’s affairs. The person appointed a guardian is known as “ward.” A guardian has the powers and duties stated in Florida Statutes section 744.361. The Ward retains the rights stated in Florida Statutes section 744.3215.
Types of Guardianship
There are three types of guardianship: guardianship of the person, of the property, and of the person and property. The court may appoint the type of guardianship that it determines is appropriate for the ward’s incapacity.
Guardianship in Florida
What is Guardianship?
Guardianship is a legal process in which the circuit court appoints someone to protect and exercise the legal rights of an incapacitated person. A person is incapacitated if it is judicially determined that the person lacks capacity to manage at least some of his or her property, or to meet at least some of the essential health and safety requirements. An incapacitated person is known as a “ward,” and the individual appointed by the court to act on behalf of the ward’s person, property, or both is known as a “guardian.” A guardian can be an individual or an institution.
How is it Determined that a Person is Incapacitated?
Florida Pet Trust
We often get questions regarding the creation of Pet Trusts in Florida. Florida Statutes have provided for pet trusts for many years but they do not always make sense. I have attached a document which you can use to help gather information that will be necessary to determine if a Florida Pet trust is right for your family or you should be looking to add separate provisions to your Florida Will or Florida Revocable Trust to deal with taking care of your pets in the case that you are unable to. Which ever way you decide to go, we provide free Pet Trust provisions or instructions with all of our estate plans when they are requested. This means that there are no additional charges for standard instructions or basic Pet Trusts with any estate plan we draft. Obviously if your situation requires a more complex plan there will be charges associated with it, but we love animals and want to make it easy and inexpensive to take care of your pets.
To begin the process download the Florida Pet Trust Document, take a few minutes to complete it and return it to us with your estate planning objectives.
The Effects of Using a Deed to Transfer Real Estate Property Ownership to Avoid Probate
You 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
- 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.
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.
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.