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 Because the law is continually changing, some provisions in this blog may be out of date.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

Your Real Estate Transaction: 3 Main Benefits of Legal Representation

Attorney Randall D. Baskin

1. Before you sign the purchase and sale agreement: Whether you are the Buyer or the Seller, the need for attorney representation in a real estate transaction begins before you sign the purchase and sale agreement. While many real estate professionals claim to work with “standard contracts,”Personal representative compensation
there is no such thing as a standard contract. The boxes you fill in on those “standard contracts” can have a large impact on how costs associated with your real estate transaction are allocated between Buyer and Seller. For example, the contract will dictate which party will be obligated to pay any special assessments imposed upon the property that are due after closing. An attorney representing your best interests can provide advice on your contractual rights and obligations under a purchase and sale agreement before and after you sign on the dotted line.

Estate planning 2. During the escrow period: Once the purchase and sale agreement is signed, an attorney can help to ensure that your transaction goes smoothly by examining the title commitment to the property and by working to clear any clouds on the title that will affect your future use and enjoyment of the property.

Additionally, an attorney can advise on key issues affecting property ownership, such as choosing the right form of legal ownership and navigating the Florida Homestead Laws.

How ownership of property is taken can have vast legal consequences. When purchasing real estate, there are several ways to take legal title, such as jointly, individually, in a trust, or in a business entity. An attorney can analyze the facts of your particular situation and advise on which form of ownership is best for you.

The State of Florida affords unique legal protection to an individual’s real property through its Homestead Laws. An attorney can advise on Florida Homestead Laws and how to use these laws to protect your real property from liability, as well as how to maximize the tax benefits afforded to homestead property.

attorney real estate3. At closing: After all contingencies of the contract have been met, the closing can occur. At the closing table and after closing, an attorney will ensure that the transaction and all related documents are properly researched, executed, and recorded. If the property is in probate at the time of the sale, an attorney can help to ensure that the property is conveyed legally and all beneficiary interests in the property are extinguished.

For more information about real estate in St. Petersburg, Tampa, and Clearwater, call 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.

 

A Personal Representative Must Be Appointed by a Judge Before He or She Can Serve

Probate and trust administration is handled by BaskinFleece

If the decedent’s will designated a personal representative, the judge will decide if that person is qualified to serve. A circuit court judge supervises or presides over probate administration and also rules on the validity of the decedent’s will. If the decedent Personal Representativedied without a will, the judge will consider evidence to confirm the identities of the decedent’s heirs as those who will receive the decedent’s probate estate.

If the designated personal representative meets the statutory qualifications, the judge will issue “Letters of Administration,” also referred to simply as “letters.” These “letters” are important evidence of the personal representative’s authority to administer the decedent’s probate estate.

The judge will hold a hearing, as necessary, to answer any questions or to resolve disputes that arise during the course of administering the decedent’s probate estate. The judge’s decision will be set forth in a written direction called an “order.”

For information about Probate Administration in St. Petersburg, Tampa and Clearwater, call 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.

The Difference between Commercial Accountings and Fiduciary Accountings: Part 1

Commercial and Fiduciary Accountings Part 1: General Overview

BaskinFleece lawyer Jay FleeceJoseph W. “Jay” Fleece, III, Esquire

Commercial or Business Accountings are used primarily to determine the profitability and solvency of a business. These types of accountings are better known as “financial statements” comprised of a “balance sheet” which shows the company’s assets, liabilities and ownership equity as of that report; an “income statement” or “profit & loss statement” which explains the company’s income, expenses and profits over time; and a “statement of cash flows” which is concerned with the flow of cash in and out of the business. These types of accountings benefit investors, shareholders and creditors. As part A Fiduciary Accounting is an accounting that must be rendered by a fiduciary; usually a personal representative of an estate; a trustee of a trust; an agent under a power of attorney; or a guardian.of preparing these types of accounting reports, a common set of accounting principles, standards and procedures are used to compile these reports. This common set of standards is referred to as “Generally Accepted Accounting Principles” or GAAP. GAAP provides comprehensive guidance on ways to record and report the financial information in a uniform manner for businesses.

A Fiduciary Accounting differs totally from a Commercial Accounting. A Fiduciary Accounting is an accounting that must be rendered by a fiduciary; usually a personal representative of an estate; a trustee of a trust; an agent under a power of attorney; or a guardian. Any situation where someone is holding or dealing with property of others usually creates a fiduciary relationship requiring a Fiduciary Accounting. The fiduciary is usually entrusted with the safekeeping, management, and disposition of assets on behalf of others.

A Fiduciary Accounting, rather than focusing on the profitability of the entity, focuses on the underlying assets and how the fiduciary has discharged his responsibilities to the beneficiaries in dealing with those assets.

The Fiduciary Accounting is the main, and perhaps only, way a beneficiary can determine whether the fiduciary has managed, protected and invested the underlying assets appropriately

The Fiduciary Accounting is the main, and perhaps only, way a beneficiary can determine whether the fiduciary has managed, protected and invested the underlying assets appropriately. If the fiduciary has failed to appropriately manage, protect and invest the underlying assets, then the beneficiary can hold the fiduciary accountable for breach of the multiple fiduciary duties owed to the beneficiaries. A fiduciary, knowing he is under a duty of full disclosure regarding the assets, may be less inclined to commit a breach of duty resulting in a loss to the beneficiary. A Fiduciary Accounting also allows a fiduciary to be discharged from liability for all disclosed actions in the accounting limiting a trustee’s liability. These two main objectives of fiduciary accounting are usually described as “Performance” accounting and “Discharge” accounting.

GAAP business accountingUnlike Commercial Accountings, there are no GAAP guidelines that govern the preparation of Fiduciary Accountings. That is not to say, however, that there are no guidelines which pertain to Fiduciary Accountings. The first place to look to see what guidance is provided to prepare a Fiduciary Accounting is the governing instrument. If that document does not provide guidance, then state laws should be consulted.

Over time, most of the states have adopted rules and statutes that provide guidance. Florida has adopted its variation of the Uniform Principal and Income Act, as embodied in Chapter 738 of the Florida Statutes. This statute gives guidance on what is classified as receipts and disbursements of income and principal, among other things. Rule 5.346 of the Florida Rules of Probate Procedure sets forth certain standards required for Fiduciary Accountings, at least for probate matters, but can and should be standards for all Fiduciary Accountings in Florida, as this rule was adopted the Uniform Fiduciary Accounting Principles and Model Formats as adopted by the Committee on National Fiduciary Standards of the American Bar Association.

Probate courtThe purpose of a Fiduciary Accounting must be to fully disclose and when necessary, explain the transactions in a clear and concise way so that a beneficiary can readily determine what assets are being administered, how each asset performed, either by income being generated by that asset, costs attributable to the carrying of that asset, and capital gain or loss on the disposition of that asset. The beneficiary should be able to readily determine how the income or principal of the trust, or probate estate, was used during the accounting period, and what the assets are still on hand at the end of the accounting period.

©2015 BaskinFleece –  Part 2 – The Fiduciary Accounting in more detail to follow at a later date.

To watch a video on the topic of the Fiduciary Duty of a Trustee, click here.

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

This blog/video 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.

Florida Laws for Elder Abuse

Attorney Jay Fleece of BaskinFleece

Historically, Florida has a large retirement population most of whom are over the age of 65. As many retirees grow older, they suffer from diminished capacity and become susceptible to being taken advantage of. This PDF article is written to help you and your loved ones: Laws Regarding Elder Abuse.

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.

Wills: Marriage and Moving to Florida.

Review your will after being married in or moving to Florida.Marriage does not cancel a will in Florida, but a spouse acquired after the execution of a will may receive the same portion of your estate that he or she would have received had you died without a will (at least one-half).

If you have moved to Florida from another state, it is wise to have your will reviewed by a Florida lawyer in order to be sure that it is properly executed according to the laws of Florida, that the witnesses are readily available to prove your will in Florida, and that your personal representative is qualified to serve in Florida.

No matter how perfect a will may be prepared for you, unless it is properly executed in strict compliance with the laws of Florida, the will may be entirely void. Be sure that you execute your will in the presence of your attorney, who knows exactly how and in what order the will should be signed.

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

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.
  • Estate taxes, wills
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