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 Because the law is continually changing, some provisions in this blog may be out of date.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.

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.

April 1st – This Day in History: BaskinFleece Became One!

Jay Fleece and Hamden Baskin

Attorneys Jay Fleece and Hamden Baskin

April 1, 2004 – Joseph W. “Jay” Fleece, III, and Hamden H. Baskin, III, decided to combine their extensive knowledge and experience to create a unique law firm that was focused mainly on contested estate, trust and guardianship matters. Their philosophy was simple: leverage trial skills with the knowledge of probate and trust law to provide consistent, efficient and effective representation for their clients – resulting in positive outcomes. Congratulations to Jay Fleece, Hamden Baskin and their team for serving the community and its clients since 2004.

In addition to the formation of BaskinFleece, here are other interesting and historical events that happened on April 1st:

Estate expenses: The personal representative’s compensation is usually determined in one of five ways...April 1, 1778 – Creating this icon made sense: New Orleans businessman Oliver Pollock creates the “$” symbol.
April 1, 1789  The US House of Representatives had it’s first full meeting in New York City, and F. Muhlenberg is the first Speaker of the House.
April firstApril 1, 1970  Cigarette advertising was banned and signed into law by President Richard Nixon. Here’s a classic ad featuring Ronald Reagan endorsing Chesterfield cigarettes.
April 1, 1985 – 47th NCAA Men’s Basketball Championship: Villanova beats Georgetown 84-75
April 1, 1970 AMC introduced the Gremlin, one of the first sub compact cars way back in 1970, before many realized gas prices would be a critical factor in future car buying. The car cost $1,879. Car imports were just starting to have an impact on the US market including the Volkswagen Beetle and the new generation of Japanese imports like the Datsun.

You can contact BaskinFleece on, before, or after April 1st at 727.572.4545.

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.

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.