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.

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.

Digital Assets Part 2: Estates – What a Personal Representative Can and Can’t Do

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Attorney Colleen Carson

In Part 2 of Digital Assets, learn what happens in different scenarios with digital assets and how it may effect your estate. For example, what happens to your Facebook account, who can control it, can someone change it, what is a legacy contact and does your Facebook page get deleted or memorialized? What about Bitcoin or PayPal account disclosures? Can the personal representative access an email account and its content? These questions and many others are covered in attorney Colleen Carson’s short video below:

Attorney Jay Fleece Is Featured in the 23rd Edition of The Best Lawyers in America©

Baskin Fleece partner Joseph W. “Jay” Fleece, III, was selected by his peers for inclusion in The Best Lawyers in America© 2017 in the field of Trusts and Estates Litigation. Best Lawyers is based on an exhaustive peer-review evaluation. This year, 7.3 million votes were analyzed, resulting inBaskinFleece lawyer Jay Fleece the inclusion of almost 55,000 lawyers in the 23rd edition. Lawyers are not required nor allowed to pay a fee to be listed. Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.”

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

What is Probate Administration, and What if there’s No Will?

Wills

Probate administration is the process whereby a will is admitted to probate (and thereby deemed to be the “last will”) by the probate judge, who supervises the administration. During the probate of the decedent’s estate, creditors are paid by the personal representative, who is appointed by the judge and is normally someone nominated as personal representative in a will.

If there is no will, a family member is given priority to serve as personal representative. The personal representative then marshals/gathers all assets belonging to the decedent known to exist, and after paying all creditors, federal and state taxes owed and administrative expenses, the estate assets, including cash, are distributed to the beneficiaries. This process is automatically scheduled for one year by Florida law for a non-taxable estate and two years in the event a Form 706 Federal Estate Tax Return is required. Many times the estate administration of a will can be effected from start to finish in much less time.

BaskinFleece handles all aspects of wills and probate administration. For more information click BaskinFleece, or call us at 727.572.4545.

BaskinFleece was named one of the Best Law Firms in US News & World Report’s 2015 rankings, receiving a tier two distinction for the Tampa metro area in the field of trusts2015 Best Law firm 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.

Can the Personal Representative of a Will Be Compensated?

Estate expenses: Compensation for a personal representative in Florida is determined in one of five ways...

The 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.

Estate 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.

The personal representative’s compensation is determined in a variety of ways.The 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; 

The expenses of an estate usually include compensation for the personal representative.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.

For help with a will, estate planning and personal representative 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 Guardianships in Clearwater, Tampa and St. Petersburg

ProbateBaskinFleece 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. 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 BaskinFleece handles all aspects of contested guardianship litigation.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.