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.

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.

Probate and Trust Administration Challenges

Trust Administration
BaskinFleece handles all aspects of probate and trust administration.
 
Trust administration is that process whereby assets and cash which were funded into a revocable or irrevocable trust during the decedent’s lifetime or “poured into the trust after his or her passing”, are marshaled/gathered and made ready for distribution to the beneficiaries named in the trust. Trust administration also requires the filing of a notice of trust with the probate court and is the process whereby creditors are paid, and after all state and federal tax returns are filed and all creditors and other administrative expenses are paid, the trustee makes a final distribution of the trust assets and cash. The process is similar to Florida probate administration, but there is no circuit judge supervising the administration, nor is a fiduciary bond usually posted, and many times it can be accomplished more efficiently, and thereby cheaper and faster, than a full probate administration.


trusts and ProbateMany 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 Estate expenses: The personal representative’s compensation is usually determined in one of five ways: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.

BaskinFleece lawyer Jay Fleece

Attorney Jay Fleece

BaskinFleece handles cases from the pre-suit stages, including mediation, all the way through trial, both jury and non-jury, and even at the appellate level, if necessary. The main focus of the firm in dealing with all controversies is the client. 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. 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. 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 Is a Personal Representative Compensated?

Randall D. Baskin

Attorney Randall D. Baskin

Pursuant to Florida Statute § 733.617, a personal representative is entitled to a commission payable from the estate assets, without order of the Court, as compensation for ordinary services. The commission shall be based on the compensable value of the estate, which is the inventory value of the probate assets and the income earned by the estate during administration. A commission computed on the compensable value of the estate is presumed to be reasonable compensation for a personal representative in formal administration as follows:

1) At a rate of 3 percent for the first $1 million;

2) At a rate of 2.5 percent for all above $1 million and not exceeding $5 million;

3) At the rate of 2 percent for all above $5 million and not exceeding $10 million;

4) At the rate of 1.5 percent for all above $10 million.

Tampa lawyersIn addition to the previously described commission, a personal representative shall be allowed further compensation as is reasonable for any extraordinary services performed.

For additional information, 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. 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 is the IRS Involved after a Decedent’s Death?

Taxes after deathTaxes after a decedent's deathA 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.

1. 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.

 

Florida Law Protects a Spouse from Being Cut out of a Will

Decedents of a will have rightsFlorida law protects the decedent’s surviving spouse and certain surviving children from total disinheritance. The decedent’s surviving family may be entitled to receive probate assets from the decedent’s probate estate, even if the decedent’s will gives them nothing.

For example, a surviving spouse may have rights in the decedent’s homestead real property. A surviving spouse may also have the right to come forward to claim an “elective share” from the decedent’s probate estate. The elective share is, generally speaking, 30% of all of the decedent’s assets, including any assets that are non-probate assets.

Inheritance

A surviving spouse and/or the decedent’s children may also have the right to a family allowance to provide them with funds prior to final distribution of the estate assets, and rights in exempt property that will be paid to them instead of to creditors in satisfaction of claims against the probate estate. It is important to note that a spouse may waive his or her rights to an elective share, family allowance, and/or exempt property in a valid pre-marital or post-marital agreement.

Spouse entitled to property in willsIn addition, if the decedent married, or had children, after the date of the decedent’s last will, and if the decedent neglected to provide for the new spouse or children, an omitted family member may nevertheless be entitled to a share of the decedent’s probate estate.

The existence and enforcement of these statutory rights require knowledge about the applicable laws and procedures and are best handled by an attorney. 

For help or answers to wills and 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.

 

Estate Planning in Tampa, St. Petersburg and Clearwater Florida.

Colleen-VideoButtonThe video below provides information about important documents that need to be included in an estate plan. Estate planning in Clearwater, St. Petersburg and Tampa is planning for your life time (who acts on your behalf when you become incapacitated), as well as for when you pass away. Your will only governs what happens after you pass. Estate planning is not just for the wealthy, it’s for anyone who is 18 years or older who wants to make their own medical, financial and health decisions – an estate plan puts all that in place. Without an estate plan in Tampa, Clearwater, St. Petersburg or anywhere else you live in Florida, you might end up with a court appointed guardian, and the court choosing who becomes your personal representative.

If you need estate planning in St. Petersburg, Tampa or Clearwater or anywhere else in the state of Florida, contact BaskinFleece at 727.572.4545.

 

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.