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.

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.

Personal Representative Compensation

Personal representative CompensationThe personal representative, the attorney, and other professionals whose services may be required in administering the probate estate (such as appraisers and accountants), are entitled by law to reasonable compensation.

 personal representativeEstate expenses: The personal representative’s compensation is usually determined in one of five ways: (1) as set forth in the will; (2) as set forth in a contract between the personal representative and the decedent; (3) as agreed among the personal representative and the persons who will bear the impact of the personal representative’s compensation; (4) the amount presumed to be reasonable as calculated under Florida law, if the amount is not objected to by any of the beneficiaries; or (5) as determined by the judge.

estate expenses and feesThe fee for the attorney for the personal representative is usually determined in one of three ways: (1) as agreed among the attorney, the personal representative, and the persons who bear the impact of the fee; (2) the amount presumed to be reasonable calculated under Florida law, if the amount is not objected to by any of the beneficiaries; or (3) as determined by the judge.

U.S. NewsBaskinFleece was named one of the Best Law Firms 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.

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

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.

Contested Guardianship, Probate, Trusts, and Fiduciary Litigation

BaskinFleece is a trusts and estates law firm centrally located in Pinellas County, just minutes from the courthouses in St. Petersburg, Clearwater and Tampa. The firm primarily deals with controversies involving estates, trusts, wills and guardianships in Tampa, St. Petersburg and Clearwater. BaskinFleece routinely deals with estate planning and litigation matters, including issues concerning the validity of wills and trusts, breach of fiduciary duty, lack of capacity, spousal rights, creditors’ rights and anything related to wills, trusts and guardianships.

BaskinFleece – Areas of Litigation:

Probate LitigationProbate and Estates Probate litigation encompasses all forms of contested matters arising in a probate matter. Some of the contested issues in Florida probate law resulting in litigation, include the validity of the decedent’s last will and testament; construing the terms of an ambiguous will; spousal share election under the elective share statute; pretermitted spouse and child issues; excessive fiduciary or attorneys’ fees; creditor claims; breach of fiduciary duty by the personal representative; improper accountings; recovery of estate assets and a plethora of other potential issues involving wills and trusts.

Trust LitigationTrusts – Many 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 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.

Fiduciary Litigation in ClearwaterFiduciary – Fiduciary litigation usually involves actions with trustees, personal representatives and agents holding a power of attorney for a principal. A fiduciary is a position of trust held to the highest standard of care. A fiduciary has many duties including the duty of loyalty and a duty of impartiality in the administration of wills. A fiduciary is prohibited from putting his own personal interest ahead of the person to whom he owes a duty. Fiduciary litigation in Florida can also arise in many other contexts including business relationships, partnership relationships and any other manner in which a fiduciary relationship is established.

Guardianship LitigationContested Guardianship – BaskinFleece handles all aspects of contested guardianship litigation in Clearwater, St. Petersburg, Tampa, 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. Litigation; many cases are filed to prevent the exploitation or further exploitation of an individual, often a loved one, by someone who has taken over the financial, medical and social affairs of an individual who is incapacitated and unable to resist the undue influence of others. The Order Determining Incapacity may result in the loss of substantial Civil Rights, including the right to vote; to determine one’s own medical treatment; to handle one’s own financial affairs; to make a will, change a will, gift or disposition of property; to determine one’s own residence; and to travel unsupervised, to name but a few. The filing of a guardianship, while unfortunate, is often the only means to stop the financial exploitation and wrest control away from the exploiter, who can be a stranger, but may also be a neighbor, caregiver, friend, or even a family member.

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 help or answers to litigation related questions, you can contact BaskinFleece at 727.572.4545.

What everyone should know about Probate.

Probate and the courtsProbate is a court-supervised process for identifying and gathering the assets of a deceased person (decedent), paying the decedent’s debts, and distributing the decedent’s assets to his or her beneficiaries. In general, the decedent’s assets are used first to pay the cost of the probate proceeding, then are used to pay the decedent’s outstanding debts, and the remainder is distributed to the decedent’s beneficiaries.
There are two types of probate administration under Florida law: formal administration and summary administration. There is also a non-court supervised administration proceeding called “Disposition of Personal Property Without Administration.” This type of administration only applies in limited circumstances. For more information about Probate Administration, Wills and Intestacy 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. 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.

Probate Ensures the Decedent’s Estate Debts Are Paid

Probate decedents finances
One of the primary purposes of
probate is to ensure that the decedent’s estate debts are paid in an orderly fashion. The personal representative must use diligent efforts to give actual notice of the probate proceeding to “known or reasonably ascertainable” creditors. This gives the creditors an opportunity to file claims in the decedent’s probate estate, if any. Creditors who receive notice of the probate administration generally have three months to file a claim with the clerk of the circuit court. The personal representative, or any other interested persons, may file an objection to the statement of claim. If an objection is filed, the creditor must file a separate independent lawsuit to pursue the claim. A claimant who files a claim in the probate proceeding must be treated fairly as a person interested in the probate estate until the claim has been paid, or until the claim is determined to be invalid.

Trustee, personal representative dutiesThe legitimate debts of the decedent, specifically including proper claims, taxes, and expenses of the administration of the decedent’s probate estate, must be paid before making distributions from the will to the decedent’s beneficiaries.

Estate expenses: The personal representative can be compensated in FloridaThe court will require the personal representative to file a report to advise of any claims filed in the probate estate, and will not permit the probate estate to be closed unless those claims have been paid or otherwise disposed of.

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.