No Valid Will? Here’s What Happens…

surviving spouseIf someone dies without a valid will, he or she is “intestate.”                                     

Even if the decedent dies intestate, his or her probate assets are almost never turned over to the State of Florida. The state will take the decedent’s assets only if the decedent had no heirs. The decedent’s “heirs” are the persons who are related to the decedent and described in the Florida statute governing distribution of the decedent’s probate assets if he or she died intestate.

1. If the decedent was survived by his or her spouse but left no living descendants, the surviving spouse receives all of the decedent’s probate estate. A “descendant” is a person in any generational level down the descending line from the decedent and includes children, grandchildren, and more remote descendants.

What happens when there is no valid will?2. If the decedent was survived by his or her spouse and left one or more living descendants (all of whom are the descendants of both the decedent and his or her spouse), and the surviving spouse has no additional living descendants (who are not a descendant of the decedent), the surviving spouse receives all of the decedent’s probate estate.

3. If the decedent was survived by his or her spouse and left one or more living descendants (all of whom are the descendants of both the decedent and his or her spouse), but the surviving spouse has additional living descendants (at least one of whom is not also a descendant of the decedent), the surviving spouse receives one-half of the probate estate, and the decedent’s descendants share the remaining half.

no will then what happens?4. If the decedent was not married at his or her death but was survived by one or more descendants, those descendants will receive all of the decedent’s probate estate. If there is more than one descendant, the decedent’s probate estate will be divided among them in the manner prescribed by Florida law. The division will occur at the generational level of the decedent’s children. So, for example, if one of the decedent’s children did not survive the decedent, and if the deceased child was survived by his or her own descendants, the share of the decedent’s estate which would have been distributed to the deceased child will instead be distributed among the descendants of the decedent’s deceased child.

5. If the decedent was not married at his or her death and had no living descendants, the decedent’s probate estate will pass to the decedent’s surviving parents, if they are living, otherwise to the decedent’s brothers and sisters.

6. Florida’s intestate laws will pass the decedent’s probate estate to other, more remote heirs if the decedent is not survived by any of the close relatives described above.

Wills in FloridaThe distribution of the decedent’s probate estate under Florida’s intestate laws, as discussed above, is subject to certain exceptions for homestead property, exempt personal property, and a statutory allowance to the surviving spouse and any descendants or ascendants whom the decedent supported. Assets subject to these exceptions will pass in a manner different from that described in the intestate laws. For example, if the decedent’s homestead property was titled in the decedent’s name alone, and if the decedent was survived by a spouse and descendants, the surviving spouse will have the use of the homestead property for his or her lifetime only (or a life estate), with the decedent’s descendants to receive the decedents’ homestead property only after the surviving spouse dies. The surviving spouse also, however, has the right to make a special election within 6 months of the decedent’s death to receive an undivided one-half interest in the homestead property in leui of the life estate provided certain procedures are timely followed. The spouse’s right to homestead property does not take into consideration whether the surviving spouse has one or more living descendants who are not also a descendant of the decedent.

BaskinFleece can be contacted at 727.572.4545

 
The information above 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.

Estate Planning and Joint Accounts: Pros and Cons.

Important Estate Planning Tip: Upon the passing of one of the joint owners of an account, the account automatically passes to the other person. However that can have many unintended consequences – find how in this 2 minute video:

For help or answers to will and estate related questions, you can contact BaskinFleece at 727.572.4545.

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.

When does a trust terminate and the assets distributed to the beneficiaries?

BaskinFleece lawyer Jay Fleece

By Attorney Jay Fleece

In Florida, a common estate planning scenario is for someone to create a revocable trust, sometimes referred to as a “Living Trust” and place all or most of his or her assets into the trust. The Settlor, the one setting up the trust, is typically named the initial trustee and deals with the trust property in the same fashion as if the assets were still owned by and in the name of the Settlor, with the absolute right to amend or revoke the trust and without having to account to any beneficiary.

Upon the death of the Settlor, everything changes. As the Settlor can no longer amend the trust, it becomes “irrevocable” at which time the beneficiaries named in the trust become established or vested.

Living TrustMany of these “Living Trusts” are set up to provide that upon the death of the Settlor the trust terminates and distribution is made of the trust assets to the named beneficiaries, similar to a will, but without court supervision.

Before anything can be done with the assets in a Living Trust which terminates after the death of the Settlor, a successor trustee must assume the trusteeship of the trust. Typically, the Settlor has identified and nominated someone – someone highly trusted – to be the successor trustee to take over the trust upon the Settlor’s death. Many times, a Trust Company is named as the successor trustee. The nominated successor trustee should immediately engage an attorney to guide him or her through administering a trust.

Trustee has 60 days

The Florida Trust Code then requires that a successor trustee, within 60 days after finding out that a formerly revocable trust has become irrevocable (which usually means within 60 days of the Settlor’s death), to give notice to the beneficiaries of the trust’s existence, the identity of the Settlor or Settlors, the right to request a copy of the trust instrument and the right to accountings under that section of the Code.[i]

Once the successor trustee is in place to discharge the duties as trustee, are the assets then immediately distributed to the beneficiaries named in the trust? The answer is usually no even though the successor trustee is under a fiduciary duty to make distribution when the trust terminates.

Trustee an TrustThe termination date of a trust means the time at which it becomes the duty of the trustee to wind up administration of the trust. “The period for winding up the trust refers to the period after the termination date and before trust administration ends by complete distribution of the trust estate”.[ii]

Following a trust’s termination date, the trustee has a duty within a reasonable time to distribute the trust property to the persons entitled to it, and to make preliminary distributions as appropriate within the windup period.[iii]  The Florida Trust Code provides that the successor trustee shall proceed expeditiously to distribute the trust property to the persons entitled to the property, subject to the right of the trustee to retain a reasonable reserve for the payment of debts, expenses, and taxes.[iv]  The Code also provides that on termination of the trust, the successor trustee continues to possess the powers appropriate to wind up the administration of the trust and distribute the trust property to the persons entitled to the property, subject to the right of the trustee to retain a reasonable reserve for the payment of debts, expenses, and taxes.[v]  Many practioners refer to this period between the Settlor’s death and final distribution as the “windup” period, or the “windup” trust.

The common law is clear that a successor trustee’s powers and duties do not end on the trust’s termination but continues for a reasonable amount of time to wind up the administration of the trust prior to making distribution in a manner consistent with the purposes of the trust and the interests of the beneficiaries.[vi]

Living trust wind up periodWhat is a reasonable amount of time to wind-up the administration of a trust and make distribution? This question has no clear answer as each case is different depending on the assets held in the trust, whether those assets are easily valued and distributable and determining and satisfying any trust obligations including any tax liabilities. Each trust would be judged by the facts unique to its administration. There should be a legitimate reason for the trustee to have a long “windup” period, other than wanting to collect additional fees and remain in control of the trust assets. On the trust’s termination, the assets belong to the beneficiaries only subject to the “windup” period.

As part of the wind-up process, the successor trustee should provide a final accounting which should include a plan of distribution for any undistributed assets shown on the final accounting.[vii] The successor trustee cannot be held liable for not making distributions before the expiration of the six-month limitation period within which beneficiaries can challenge the final accounting, provided the beneficiary receives a limitations notice with the final accounting. The beneficiaries can always waive the six-month period by approving the accounting and releasing the successor trustee from liability as providing a final accounting is the only mechanism available to the trustee to determine and limit liability. As an alternative, the trustee may request judicial approval of the accounting but this procedure would invariably take longer than six months and be an unnecessary expense to the trust.

When these “Living Trusts” terminate upon the Settlor’s death, a successor trustee whoTrust in Tampa and St. Petersburg fails to distribute assets and bring the trust administration to a conclusion in a timely fashion after the death of the Settlor has committed a breach of fiduciary duty and can be held accountable.[viii]

The breach of the fiduciary duty to timely make distribution is usually not done in isolation but typically involves other breaches committed by the successor trustee, including failing to provide an annual accounting and either mismanaging the trust assets or using those assets for his or her own benefit.


[i] Fla. Stat. §736.0813(1)(b).
[ii] 89 Restatement of The Law on Trusts 3d, comment b.
[iii] 89 Restatement of The Law on Trusts 3d, comment (e).
[iv] Fla. Stat. §736.0817
[v] Fla. Stat. §736.0816(25)
[vi] Restatement of the Law Third, Trusts §89; Bogert’s The Law of Trusts and Trustees §1010.
[vii] Fla. Stat. §736.08135(2)(f)
[viii] DeBello v. Buckman, 916 So.2d 882 (Fla. 4DCA 2005)


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.

Pitfalls of Using Joint Ownership to Avoid Probate

Randall D. Baskin

By Attorney Randall D. Baskin

Many clients come into this office and ask whether they should title all of their bank accounts jointly with their children, as joint tenants with right of survivorship, in order to avoid probate and quickly pass ownership of assets to their children upon their passing.

Joint tenancies with right of survivorship are established when two or more people title assets, such as bank accounts or real property, in their joint name, as joint tenants with right of survivorship. With this form of shared ownership, upon the passing of a co-owner, the deceased co-owner’s interest in the property ends and title passes directly to the surviving co-owner(s). This process would continue until there is a single owner of the account. While this method of passing ownership in assets avoids probate, it can present a new set of issues which should be considered prior to taking any action.

Estate planning and joint accountsTax Consequences: The moment you add another person on an account as a joint tenant with right of survivorship, you are effectively making a gift of one-half of the value of the account.  If the gift is more than $14,000 (meaning the account contains more than $28,000), then you effectively just made a taxable gift to the newly added joint owner, which gift should be reported to the IRS.

Liability Issues: An account titled with another individual as joint tenants with right of survivorship is now no longer your solely owned asset. One-half of this account is now vulnerable to judgments and creditors of the joint owner.

Estate PlanningUnintended Estate Planning Consequences: When a parent adds one or more, but not all, of their children to an account as a joint tenant with right of survivorship, upon the parent’s passing, some children may end up inheriting more than others. While the parent may intend for all of the children to receive an equal share of the assets upon their passing, the surviving co-owners of the account have no obligation to share with their siblings. And, if the surviving co-owner of the account does choose to share with their siblings not named on the account, it would be considered a gift.

In order to avoid the outcomes discussed above and create the most effective estate plan for your situation, it is important to consult with an estate planning attorney prior to retitling your assets.

For additional information please contact BaskinFleece at 727.572.4545.

 

Terri Schiavo, Karen Quinlan and Estelle Browning: Historical Cases that Led to Development of the POLST Form

Quinlin Terry SchiavoAttorney Hamden Baskin discusses the historical end-of-life cases of Terri Schiavo, Karen Quinlan and Estelle Browning and how they influenced the creation of the POLST (Physicians Orders for Life-Sustaining Treatment) form.