Proper Execution of a Will and What Happens When a Will Is Lost?

Estate Planning will signing listA will cannot dispose of any of the decedent’s property until it is admitted to probate. In order for a will to be admitted to probate, it must be executed in accordance with the formalities required by Florida law. The testator must sign his will at the end in the presence of two attesting witnesses. The attesting witnesses must sign in the presence of each other and in the presence of the testator. If the testator attaches a self-proof of will, the will may be admitted to probate without further proof. Without a self-proof of will, an oath of one of the attesting witnesses may be required before the will is admitted to probate.

What Happens When a Will Is Lost? Upon the testator’s death, if a will, executed by the testator and kept in his possession, cannot be found, there is a presumption, absent other evidence, that he destroyed it with the intention of revoking it. However, this presumption may be overcome and the will may be admitted to probate if an interested person is able to establish the full and precise terms of the lost or destroyed will. The content of the lost or destroyed will may be proven with a correct copy of the will and the testimony of one disinterested witness. Without a correct copy, the content may be established through the testimony of two disinterested witnesses.

Related video: Estate Planning documents you must have…

Baskin Fleece handles all aspects of estate planning, probate administration, and litigation. To schedule an appointment with a BaskinFleece attorney, call (727) 572-4545. For more information about BaskinFleece, please visit www.BaskinFleece.com.

Death and Taxes: How is the IRS Involved after a Decedent’s Death?

IRSA personal representative has the responsibility to pay amounts owed by the decedent or the estate to the IRS. Taxes are normally paid from probate assets in the decedent’s estate, and not by the personal representative from his or her own assets; however, under certain circumstances, the personal representative may be personally liable for those taxes if they are not properly paid.

Estate planning in Florida1. The estate will not have any tax filing or payment obligations to the State of Florida; however, if the decedent owed Florida intangibles taxes for any year prior to the repeal of the intangibles tax as of January 1, 2007, the personal representative must pay those taxes to the Florida Department of Revenue.

2. The decedent’s death has two significant tax consequences: It ends the decedent’s last tax year for purposes of filing the decedent’s federal income tax return, and it establishes a new tax entity, the “estate.”

3. The personal representative may be required to file one or more of the following returns, depending upon the circumstances:

IRS U.S. Income Tax• The decedent’s final Form 1040, Federal Income Tax Return, reporting the decedent’s income for the year of the decedent’s death.

• One or more Forms 1041, Federal Income Tax Returns for the Estate, reporting the estate’s taxable income.

• Form 709, Federal Gift Tax Return(s), reporting gifts made by the decedent prior to death.

• Form 706, Federal Estate Tax Return, reporting the decedent’s gross estate, depending upon the value of the gross estate.

The personal representative may also be required to file other returns not specifically mentioned here. 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. Some of the content of this information is courtesy of The Florida Bar and represents general legal advice. 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.

Attorney Colleen Carson Achieves the AV Preeminent Rating

Attorney Colleen Carson

Congratulations to BaskinFleece attorney Colleen Carson for achieving the highest level of Professional Excellence rating from her peers, the AV Preeminent from Martindale-Hubbell. The Martindale-Hubbell Peer Review Ratings™ have been the gold standard in attorney ratings for more than a century. Attorneys looking to refer a client, as well as individuals researching lawyers for their own legal needs, use these ratings to identify, evaluate and select the most appropriate lawyer for their legal issue. A Peer Review Rating contributes to the comprehensive view of a lawyer and benefits the entire legal community.


AV Preeminent Peer AwardAV Preeminent®:
The highest peer rating standard. This rating signifies that the lawyer’s reviewed peers rank attorney Colleen Carson at the highest level of professional excellence for her legal knowledge, communication skills and ethical standards.

5 Reasons to Review Your Estate Planning Today:

  1. Pay-on-death beneficiaries sometimes fail. Due to a change in computer software or a merger, it is possible for a financial institution to lose your pay-on-death beneficiary designations. As such, it is good practice to confirm designations with your financial institution at least once per year.
    estate planning
  2. There may be out-of-date contact information for the individuals named on your advance directives. Further, those individuals, due to a change of circumstance in their own life, may no longer be able to act on your behalf. In such a case, it is important to choose new fiduciaries with the ability to serve.
  3. Your intent may have changed. For example, as your children get older, they may become more viable candidates to act as fiduciaries during your lifetime or upon your passing.
  4. You are forced to locate your documents. It is important that you know where estate planningyour original estate planning documents are held, as well as any copies that have been produced. In an emergency situation, being unable to locate your advance directives could cause a delay in making important health care decisions. Additionally, upon your passing, the inability to locate your estate planning documents could cause a delay in probating your estate.
  5. Attorney Randall D. Baskin

    Attorney Randall D. Baskin

    A change in life situation, such as a change in wealth, relocation, divorce, birth or death, could drastically alter your estate planning. It is important to review your estate planning documents to ensure that they still reflect your wishes in light of any life changes. As your life evolves, so should your estate plan.

For additional information, please contact BaskinFleece at 727.572.4545.

 

 

How Is a Personal Representative Compensated?

Randall D. Baskin

Attorney Randall D. Baskin

Pursuant to Florida Statute § 733.617, a personal representative is entitled to a commission payable from the estate assets, without order of the Court, as compensation for ordinary services. The commission shall be based on the compensable value of the estate, which is the inventory value of the probate assets and the income earned by the estate during administration. A commission computed on the compensable value of the estate is presumed to be reasonable compensation for a personal representative in formal administration as follows:

1) At a rate of 3 percent for the first $1 million;

2) At a rate of 2.5 percent for all above $1 million and not exceeding $5 million;

3) At the rate of 2 percent for all above $5 million and not exceeding $10 million;

4) At the rate of 1.5 percent for all above $10 million.

Tampa lawyersIn addition to the previously described commission, a personal representative shall be allowed further compensation as is reasonable for any extraordinary services performed.

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.

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.

Digital Assets Part 3: Estates – What can the Power of Attorney, Trustee and Guardian Can and Cannot Do

In Part 3 of Digital Assets, the content of electronic communication is only authorized if the Power of Attorney specifically says you can disclose the information or a court enters an order saying it is ok to do so. What is thPayPale power of a Trustee regarding a PayPal account moving from an individual into a trust? Can the Power of Attorney or a Guardian get access to the content of emails, PayPal and other digital accounts?

This short video from BaskinFleece attorney Colleen Carson helps clarify who can do what:

For additional information please contact BaskinFleece at 727.572.4545.