Florida Trust Litigation involves disputes between beneficiaries or potential beneficiaries of assets in ones estate or trusts (a Trust Contest). Trust litigation in Florida is most often centered around Mistakes in Execution, Undue Influence, or Lack of Capacity.
While a Florida Revocable Trust can avoid the necessity for a Florida Probate to be filed, there are often circumstances that require a Probate. A Florida Revocable Trust only eliminates the need for a probate when it is funded and to the extent that your assets are inside the trust prior to death.
One of the most common problems is that people create trusts but never fund them or do not fund them completely. One of the most common assets, the Florida Homestead, must be dealt with or a probate will be required to transfer marketable title to the beneficiaries. Even though, the home, in most cases, will transfer automatically upon death under the Florida Constitution, it is necessary to open a Florida Probate to transfer the home with Marketable title. The title companies require the probate court to establish the home as a homestead, notify potential creditors, and have the title transferred in the probate to insure the home against future claims from creditors who claim they were not notified. For more information on this and other issues with avoiding probate, Julie Garger wrote an article why a Florida Revocable Trust may not avoid probate.
In Florida, a surviving spouse is usually entitled to take an elective share of their spouse’s estate. This is to prevent one spouse from disinheriting the other. Unless there is a valid Prenuptial or Post Nuptial agreement in place, the surviving spouse is entitled to take 30% of the spouses entire elective estate.
Florida Statute § 732.2035 describes what property is included in the elective share of the decedent’s estate.
There are time requirements on filing for an elective share and failure to timely file may result in waiver of this option. To evaluate the effects of electing a Florida Elective Share, Contact a Florida Estate Planning Lawyer who is familiar with Florida Elective Share Litigation.
In Florida, the question of whether an attorney should charge fees based on the value of the home or land is a common one. The answer to this question depends on whether the Home is considered a homestead. A Florida Homestead is a constitutionally protected piece of property which is exempt from being counted as an asset of the decedent in a Florida Probate. If the home is a Florida Homestead, the fees for transferring the property to the decedents must be reasonable and unless the home a very small value it would be unreasonable to charge 3% of the homes value to transfer the property. In all Florida probate cases a lawyers fees must be reasonable. When a home is considered a homestead, the lawyer must file a petition to determine homestead, publish notice to the creditors, and if there are no objections, file a PR deed to transfer the property.
If you are a creditor or a beneficiary of a Florida Probate and think that the fees in the Probate are unreasonable Contact us and we can review the fees and the court file to determine if you are being treated reasonably. When fees are higher than necessary, we can often resolve the dispute with a letter and a few conversations. Sometimes the issues are more complex and it becomes necessary to attend a hearing in the probate court to present evidence or dispute the fees. When this happens a Judge will make the determination of whether the PR fees and the Legal fees are reasonable.
A GRAT or Grantor Retained Annuity Trust is an estate planning technique that minimizes the tax liability existing when transfers of estate assets occur. Under a GRAT, an irrevocable trust is created for a certain term or period of time. The individual establishing the trust pays the taxes associated with income and the transfers. As long as the individual outlives the term of the GRAT then the assets that are transferred go to the beneficiary free of Estate taxes.
GRAT’s are typically used with high net worth individual who want to reduce the amount of estate taxes their estate will be subject to.
Florida Will Litigation involves disputes between beneficiaries or potential beneficiaries of assets in ones estate or trusts (a Will Contest). Trust litigation in Florida is most often centered around Mistakes in Execution, Undue Influence, or Lack of Capacity.
In Florida the personal representative is the person named in a will collect and distributed the assets of a person after death. In a Florida Probate this typically involves taking care of and real or personal property, paying legitimate outstanding bills and filing and paying taxes. Once the debts are paid, the remaining assets are transferred to their new rightful owners. The Personal Representative or Executor can request payment from the estate for the job that they are doing. Florida state law and what is contained in the decedent’s will regulate the exact amount a PR is paid. Often in simple estates and where the PR is a close family relative the PR will not charge a fee for administering a Florida Estate.
The National Care Planning Councel has an article on Elder Law Mediation as a non-adversarial approach to solving disputes. Mediation is a process of bringing two or more disputing parties together and having them mutually negotiate a solution to their disagreement. The mediator is not a judge and does not render a decision but is there to make sure that communication flows freely between the disputing parties. Elder Mediators are trained in the art of negotiating resolutions between elderly parents and family members.
Mediation can achieve results that the family by itself may not be capable of realizing or have the expertise of achieving. Here are some reasons that make Elder Mediation so valuable.
• A trained expert on communication gives the family a perspective it could not gain by meeting together on its own;
The Emergency Economic Stabilization Act of 2008 temporarily raises the basic limit on federal deposit insurance coverage (FDIC) from $100,000 to $250,000 per depositor. WARNING the basic deposit insurance limit will return to $100,000 after December 31, 2009.
The rise in insurance coverage applies to most trust accounts with no more than five beneficiaries.
Some benefits of establishing a Florida Revocable Trust include of avoiding probate, transfer upon death of property,reduced taxes, and privacy.