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.

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.

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.

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.

Wills, Probate and Trusts: How Property Passes on Death

BaskinFleece lawyer Jay Fleece

By Attorney Jay Fleece

When a person dies, their assets, be it real estate, bank accounts, stocks, bonds, jewelry, automobiles or whatever else they may own 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.

Probate

If someone owns an asset in their individual name at the time of death, that asset should pass to the beneficiaries specified in the decedent’s will. If the decedent did not have a will, then the Assetsdecedent’s property will pass under the laws of intestacy. In other words, the state of Florida decides how your assets will be distributed. This does not mean all of the decedent’s property passes to the state, but rather to individuals based on their relationship to the decedent.

Florida statutes 732.102 and 732.103 set forth the statutory scheme for intestate succession. For example, if an individual dies without a will and 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 under 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 a court supervised process whereby a decedent’s property is transferred in an orderly fashion to those legally entitled to the assets.

Living wills and trustsTrusts

Some people elect to create a revocable “living” trust during their lifetime. In such a case, certain assets are transferred to the trust and retitled  in the name of the trust. The individual creating the trust, called the “Grantor,” has full power to change, modify and revoke the trust during his or her lifetime. After the death of the grantor, these trusts become irrevocable and the trust property is disposed of in accordance with the terms of the trust. This type of trust, called a “Grantor Trust,” often contains 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 trustee named in the trust document would then have the responsibility of distributing the trust assets in accordance with the terms of the trust. Administration of a trust is similar to the probate process but is not subject to court supervision.

contractual provisionsContractual Provisions

Assets governed by contractual provisions pass outside the probate and trust administration process. Instead, these assets pass directly to the recipients designated in the contract governing the asset. The most prevalent type of asset that passes by contract is joint bank accounts. Typically a bank account titled in two or more names will pass to the surviving owners of the account. Other assets governed by contractual provisions include payable on death accounts, and accounts “held in trust for.”  Payable on death accounts are frequently referred to as “Totten Trusts.” Other forms of contractual arrangements that pass property directly to a named beneficiary include life insurance policies, retirement accounts and annuities.

Screen Shot 2016-08-29 at 9.36.32 AMWhy you 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.

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.