How Property Passes on Death.

BaskinFleece lawyer Jay Fleece

Attorney Jay Fleece

When someone dies, their property, be it real estate, bank accounts, stocks, bonds, jewelry, automobiles or whatever that person owns must pass to someone legally entitled to those assets. There are three basic ways property passes on death. Each way depends on how the particular asset is owned or titled at the time of death.

1. Probate. If someone owns an asset in his or her own name at the time of death, that asset should pass to the deceased beneficiaries that are specified in his or her will. If the decedent did not have a will, then the property owned by the decedent will pass under the laws of Probate lawyerintestacy. In other words, the state of Florida makes a will for the decedent. This doesn’t mean all of the decedent’s property passes to the state but rather to individuals depending on their relationship to the decedent.

Florida statutes 732.102 and 732.103 set forth the statutory scheme for intestate succession. For example if a man dies without a will but is survived by a spouse and children of that marriage, then the surviving spouse is entitled to the first $60,000.00 of assets and anything over that amount is equally divided between the surviving spouse and the children.

When property passes by the terms of a last will and testament or by intestate succession, the process by which this transfer is accomplished is called probate. Probate is essentially a court supervised process whereby a decedent’s property is transferred in an orderly fashion to the ones legally entitled to those assets.

trusts and estate plans2. Trusts. Some people elect to create a revocable “living” trust during their lifetime. Here, the trust assets are typically titled in the name of the trust. The grantor, the one creating the trust, has full power to change, modify and revoke the trust during his or her lifetime. After the death of the grantor, these trusts usually terminate and the disposition of the property held in the trust will be governed by the terms of the trust. These type of trusts typically contain language very similar to language used in a last will and testament, which specifies how and to whom the decedent’s property will pass. A successor trustee named in the trust document would then have the responsibility of effectuating the terms of the trust and to make sure the intended beneficiaries receive what the decedent intended. The administration of the trust is also similar to the probate process but is not subject to court supervision.

Estate expenses: The personal representative’s compensation is usually determined in one of five ways:3. By contractual provisions. Assets subject to contractual provisions pass outside the probate process and the trust process. These assets pass directly to the recipients designated in the contract that governs that asset. The most prevalent type of asset that passes by contract would be a joint bank account. Typically a bank account titled in two or more names will pass to the survivor. Other type of contractual bank accounts include the payable on death account, or the “held in trust for …” account, a Totten trust as these types of accounts are sometimes called. Other forms of contractual arrangements which pass property directly to a named beneficiary include life insurance policies, retirement accounts and annuities.

Why someone should engage in estate planning. While each of these areas are discussed in greater detail in other articles, this basic outline should illustrate how important it is to make sure that you understand how your assets are titled and how they will pass on death. The unintended consequences of improperly titling your assets could have a devastating effect on your estate plan. For those with substantial wealth, estate planning from a tax perspective can save on income and estate taxes.

To schedule an appointment with a BaskinFleece attorney, call (727) 572-4545. For more information about BaskinFleece, visit www.BaskinFleece.com.

This blog is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. Because the law is continually changing, some provisions in this blog may be out of date. It is always best to consult an attorney about your legal rights and responsibilities in your particular case.

BaskinFleece was Named One of the Best Law Firms …

U.S. News… in US News & World Report’s 2017 rankings, receiving a tier two distinction for the Tampa metro area in the field of trusts and estates litigation. Firms included in the list are recognized for “professional excellence with persistently impressive ratings from clients and peers.” Selection is based on lawyer and client evaluations, peer review from leading attorneys, and review of additional information provided by the law firm. To be eligible, firms must also have at least one lawyer listed in the 19th edition of The Best Lawyers in America.

personal representative feeBaskinFleece handles trust litigation, probate litigation, and guardianship litigation cases in St. Petersburg, Tampa, Clearwater, and throughout Florida, from the pre-suit stages – including mediation – all the way through trial, both jury and non-jury, and at the appellate level, if necessary. In addition, the firm assists clients with estate planning from the drafting of a simple will to complex tax planning and wealth transfer matters for high-asset estates. BaskinFleece handles all aspects of probate and trust administration as well, accomplishing the process capably, competently, and in a timely fashion for the benefit of heirs, beneficiaries and all parties involved.

BaskinFleece also provides legal services related to real estate and business law, both transactional and litigation.

In all matters, the client is and remains the firm’s main focus. Aspects of litigation such as cost, emotional impact and timeliness are all important to the client, and the firm strives for an end result which leaves the client feeling that justice was accomplished in an efficient and effective manner.

For related help, you can contact BaskinFleece at 727.572.4545.

4 Ways Probate Can Help You

Probate administration laws1. Court Oversight of Personal Representative. Probate is a Court supervised process. The actions of the Personal Representative are reviewed by the Court. The Personal Representative has a duty to act in the best interest of your estate and is accountable to the Court for its actions.

2. Reduced Time for Creditors to File Claims. Under Florida statutes, during probate administration, a creditor is limited to a 3-month time period to file a claim with the Court. If the creditor fails to timely file a claim, then the creditor’s claim is forever barred. For comparison, if there is only a trust administration, a creditor has 2 years to file a claim.

3. Orderly distribution of assets pursuant to terms of Last Will and Testament, or laws of intestacy, if there is no Last Will and Testament. After payment of all claims and expenses of the Estate, the Personal Representative, (we recommend with the help of an attorney), prepares an accounting and plan of distribution which is provided to all beneficiaries. Each beneficiary has the right to object the accounting and plan of distribution. Once the accounting and plan of distribution is approved by all beneficiaries (or the time for objecting has expired), the Personal Representative distributes the remaining assets pursuant to the terms of the Last Will and Testament (or laws of intestacy if there was no Last Will and Testament). Prior to discharging the Personal Representative, the Court ensures all beneficiaries have signed a receipt for distribution.

4. Your Estate, while in probate, is a separate tax entity, which may afford income tax savings. Several of the expenses incurred during the probate process, including funeral and internment arrangements, probate administration expenses, personal representative fees, attorney fees, and CPA fees may be deductible against the income generated by the Estate assets.

Attorney Colleen Carson

Many of the tasks and duties listed above can be overwhelming for a Personal Representative. A qualified attorney can help make that process smoother and less daunting for you. If you need an experienced attorney in trust and probate matters, consider contacting BaskinFleece at 727.572.4545.

Probate and Trust Administration Challenges

Trust Administration
BaskinFleece handles all aspects of probate and trust administration.
 
Trust administration is that process whereby assets and cash which were funded into a revocable or irrevocable trust during the decedent’s lifetime or “poured into the trust after his or her passing”, are marshaled/gathered and made ready for distribution to the beneficiaries named in the trust. Trust administration also requires the filing of a notice of trust with the probate court and is the process whereby creditors are paid, and after all state and federal tax returns are filed and all creditors and other administrative expenses are paid, the trustee makes a final distribution of the trust assets and cash. The process is similar to Florida probate administration, but there is no circuit judge supervising the administration, nor is a fiduciary bond usually posted, and many times it can be accomplished more efficiently, and thereby cheaper and faster, than a full probate administration.


trusts and ProbateMany of the same contested issues in a probate estate also exist in trust matters.
 
The main difference is that an independent civil action needs to be filed in order to invoke the jurisdiction of the court and have summonses issued to the Defendants. As Florida trust administration is not court supervised, it is up to the beneficiaries, rather than the probate judge, to make sure the trustee is discharging his duties in accordance with the trust terms and with the law. For the most part the only way a beneficiary can review what the trustee has done is through the annual accounting Estate expenses: The personal representative’s compensation is usually determined in one of five ways:which the trustee must provide each qualified beneficiary every year. If the accounting is not provided, the trustee has breached his fiduciary duty to keep beneficiaries informed, which could result in litigation. There are many other fiduciary duties imposed upon a trustee which, if violated, subject the trustee to removal, surcharge or other remedies imposed by the courts. Our lawyers have handled a variety of wills and trust litigation in the courts of Tampa, St. Petersburg, Clearwater and throughout Florida.

BaskinFleece lawyer Jay Fleece

Attorney Jay Fleece

BaskinFleece handles cases from the pre-suit stages, including mediation, all the way through trial, both jury and non-jury, and even at the appellate level, if necessary. The main focus of the firm in dealing with all controversies is the client. Cost, emotional impact and timeliness are all important to the client and the firm strives for an end result which leaves the client feeling that justice was accomplished. For help or answers to estate-related questions, you can contact BaskinFleece at 727.572.4545.

 

This blog is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. Because the law is continually changing, some provisions in this blog may be out of date. It is always best to consult an attorney about your legal rights and responsibilities in your particular case.

Guardianships and Guardianship Administration

probate trusts advantages of each

 

BaskinFleece handles all aspects of guardianships, including uncontested guardianships and guardianship administration.

Guardianship in general involves the appointment of a Court-supervised guardian, who is sometimes a professional guardian and sometimes a family guardian. A professional guardian must pass a rigorous testing process to become a registered guardian, and all guardians are bonded for 100% of the value of the ward’s liquid assets. A family guardian must pass an eight-hour course. The guardian is a true fiduciary who is delegated the rights over an individual. This delegation may be subsequent to entry of the Order Determining Incapacity and issuance of Letters of Guardianship. A guardianship may be a plenary guardianship, where the court removes all of the enumerated statutory rights of an individual, or a limited guardianship, where only some of the rights are removed.

OldMan-Son12BaskinFleece handles all aspects of contested guardianship litigation in St. Petersburg, Tampa, Clearwater,  Pinellas County and throughout the state of Florida. Contested guardianships are those which involve either the establishment of a guardianship or situations where the alleged incapacitated person may not in fact be incapacitated, or reasonable alternatives to a guardianship exist.

For help with a elder law and guardianship related questions, you can contact BaskinFleece at 727.572.4545.

This blog is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. Because the law is continually changing, some provisions in this blog may be out of date. It is always best to consult an attorney about your legal rights and responsibilities in your particular case.

 

 

What Does a Personal Representative Do?

Personal Representative

A personal representative is a fiduciary appointed by the judge to be in charge of the administration of a decedent’s estate. In Florida, the term “personal representative” is used instead of such terms as executor, executrix, administrator and administratrix. A personal representative is under a duty to settle and distribute the estate of the decedent in accordance with the terms of the decedent’s will, if any, and the Florida Probate Code, as expeditiously and efficiently as is consistent with the best interests of the estate.

More specifically, a personal representative must:

  • Identify, gather, value and safeguard the decedent’s probate assets;
  • Publish a “Notice to Creditors” in a local newspaper in order to give notice to potential claimants to file any claims against the estate in the manner required by law;
  • Serve a “Notice of Administration” to provide information about the probate estate administration and notice of the procedures required to be followed by those having any objection to the administration of the decedent’s probate estate;
  • Conduct a diligent search to locate “known or reasonably ascertainable” creditors, and notify these creditors 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 and pay any taxes properly due;
  • Employ professionals to assist in the administration of the probate estate, for example, attorneys, certified public accountants, appraisers and investment advisers;
  • Pay expenses of administering the probate estate;
  • Pay statutory amounts to the decedent’s surviving spouse or family;
  • Distribute probate assets to beneficiaries;
  • Close the probate estate.
Randall D. Baskin

Attorney Randall D. Baskin

A personal representative is authorized to hire an attorney to assist with the administration of the estate and is not required to use their own funds for any costs associated the administration of the decedent’s estate.

For additional information, please contact BaskinFleece at 727.572.4545.

 

This blog is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. Because the law is continually changing, some provisions in this blog may be out of date. It is always best to consult an attorney about your legal rights and responsibilities in your particular case.

Have a Happy and Prosperous New Year!

Happy New Year

The New Year marks a time for reflecting on the past year and contemplating what we learned from the last 365 days to make the coming year even better. Yes, it’s a time to celebrate past success, but it’s also a time for bold moves and fresh starts. It’s a time for dreams and friendships both old and new. It’s an opportune time to raise a toast to those who share your business success and those who cherish your personal happiness and hopes for the future.

The New Year marks a new beginning. New people to meet, new adventures to enjoy, and new memories to create. Here’s wishing you the gift of peace and prosperity throughout 2017, and wishing you a Happy New Year!