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 Because the law is continually changing, some provisions in this blog may be out of date.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

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 for Your Pet: Pet Trusts in Tampa, St. Petersburg and Clearwater

A growing number of people who seek estate planning services also ask for advice on how to provide for the care of their pet in the event of their death or incapacity. This is a logical leap considering how many people now view their pet as a member of the family. Though an animal cannot inherit money, property, or an estate, there are now legally-enforceable documents that allow an individual to provide for their pet upon their death or incapacity.

Many are of the belief that a bequest in a Last Will and Testament is adequate to provide for their pet in the future. However, it is important to understand that a bequest in your Last Will and Testament is only effective upon your passing and makes no provision for your pet during your lifetime. This means if you become incapacitated during your lifetime, there is no enforceable document governing the care of your animal. Further, wills are generally used only for the disbursement of property upon your death, not for enforcing the demands contained within. Additionally, admitting a will to probate can be a time-consuming process and thus, will not provide for your pet immediately upon your passing.

Cat-TazAs detailed above, there are several issues that can arise when an individual provides for a pet through a Last Will and Testament. Those who wish to provide a more comprehensive estate plan regarding the care of their pet, during their lifetime and at death, may be better served though creation of a pet trust. While pet trusts have not been recognized in all 50 states, Florida allows pet trusts. Including a pet trust in your estate plan is beneficial for the following reasons:

  • Pet trusts are valid during your life and at your death;
  • Pet trusts allow you to establish how to control the disbursement of funds for your pet’s benefit;
  • Provisions can be made in the event of your incapacity;
  • You can ensure that the pet will receive care in accordance with your wishes;
  • You can establish a reasonable fee for your pet’s caregiver;
  • Pet trusts can provide for an alternate caregiver in the event the primary caregiver is unable or unwilling to act;
  • There is a trustee who is monitoring the caregiver’s actions to ensure your pet is receiving the proper level of care;
  • Randall Baskin

    Attorney Randall D. Baskin, Esq.

    You can set forth your desired wishes regarding end-of-life arrangements for your pet;

  • At your pet’s death, the remaining assets in the pet trust will pass to your choice of beneficiary, such as an animal shelter in Tampa, St. Petersburg, or Clearwater; and
  • You can establish a care plan for your pet.

For more information about setting up a pet trust in St. Petersburg, Clearwater, and the Tampa Bay area, call Baskin Fleece 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.

Proper Execution of a Will and What Happens When a Will Is Lost?

Proper Execution of a Will and What Happens When a Will Is Lost?

Attorney Sam Tracy

A 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.

Related videos: The proper signing of a will and Best Practice signing of estate documents.

St. Petersburg probateWhat 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.

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, visit www.BaskinFleece.com.

Living Wills in St. Petersburg, Tampa and Clearwater, Florida

Attorney Raleigh W. ("Billy") Greene, IV,

Attorney Raleigh W. (“Billy”) Greene, IV

Make the Tough Decisions so your Loved Ones don’t have to. It’s not a fun subject to think about, nor is it a fun topic to discuss with your family, but preparation for end-of-life decisions should be part of every individual’s estate plan.

In Florida, these end-of-life preparations are made through a Living Will. There are various legal requirements when executing a Living Will, so it is important that you consult an attorney prior to doing so to ensure that your Living Will will be valid.Living Wills are often confused with Living Trusts

Living Wills are often confused with Living Trusts, which are used as an estate planning mechanism to allow your assets to pass outside of probate. A Living Will, rather, is an estate planning document that allows an individual to make known their wishes as to whether they would prefer to utilize or decline the use of life prolonging medical procedures.

These medical scenarios usually present themselves in situations where a person is suffering from the latter stages of a terminal illness, has an end-stage condition, or find themselves in a persistent vegetative state. The use of medical treatment only serves to artificially prolong the process of dying. In these circumstances, where you are unable to speak for yourself, a Living Will acts as a mechanism to make your desires known to your family members and/or the medical personnel.

Common misconceptions are the fear that a Living Will might supersede your current preferences at the time of treatment, or that declining “life prolonging treatment” on a Living Will might jeopardize your opportunity to recover from an illness or injury that you might otherwise be able to survive.

These fears are misplaced. First, a Living Will only becomes effective when you are incapacitated, meaning that if you are awake and coherent, your verbal preferences will outweigh whatever designations you made within the Living Will. Second, Living Wills are only utilized in medical situations in which it the patient is suffering from a terminal condition, end-stage condition, or is in a persistent vegetative state.

An individual should not fear that the Living Will would take effect in non-life threatening scenarios nor situations in which medical personnel might be able to resuscitate the patient to normal health. Moreover, the patient’s supervising medical doctor, and at least one other consulting physician, must separately examine the patient to certify that the patient is suffering from a terminal illness, or will remain permanently unconscious, prior to a Living Will becoming effective.

As we discussed, end-of-life preparation is not a fun topic to discuss nor prepare for, but what is exponentially worse is being put in the situation where you have to decide whether your parent, spouse or other loved one, should be resuscitated or not. Even though a A Living Will only becomes effective when you are incapacitatedloved one’s long-term medical outlook is hopeless, it can be extremely difficult for family members to “let go” when there has not been any instructions from the loved one. This often leads to long-term emotional strain and an ever-increasing financial burden.

Regardless of your position on life-prolonging treatment, make your preferences known pursuant a Living Will. You would not want to be put in the position of having to make such an important decision for another, so get yourself prepared by executing a Living Will, ensuring that the people you care about most will not have the burden of having to make that decision for you.

Are You Considering Contesting a Will in Florida?

Estate planning, wills and probate

Attorney Raleigh W. (“Billy”) Greene, IV

Make sure you file a Caveat to protect yourself. Deciding whether or not to contest a loved one’s will is understandably a very difficult decision to make. Wills are most commonly contested either due to a testator’s (person executing the will) mental incapacity or because a third-party exerted undue influence over the testator near the time the will was executed.

Often potential clients suspect foul play when their parent or loved one changes their estate planning late in life, but they decide to hold off researching their options until they have had sufficient time to mourn their loss. The hard reality, however, is that any delay could put a client at a disadvantage should they ever pursue legal action.

The beneficiaries under a questionable will often begin advancing their claims immediately after the testator passes away. If this unscrupulous individual is also nominated as the personal representative under the new will, which is usually the case, then that individual has the ability to open a probate estate on behalf of the testator.

The method used to open a probate estate is to file a document called a Petition for Administration. If the Court has no reason to suspect that a will contest is being considered, then the Court will appoint a personal representative and that individual would then be empowered to act on behalf of the testator’s estate. One of the main concerns in allowing this appointment to happen is that once an individual is named personal representative of an estate, they have the ability to use estate funds to defend any legal action brought against the estate. This can put a potential will contestant at a serious financial disadvantage in a will contest.

probate estate and will litigation

File a Caveat with the Court

So what can you do to protect yourself? The Florida Probate Code allows any interested party, who is “apprehensive” about a testator’s estate, to file a Caveat with the Court. A Caveat basically puts the Court on notice that there are questions surrounding a testator’s Last Will and Testament. As long as the Caveator is not merely a creditor of the estate, a Caveat can be filed either before or after the testator’s death.

Once a Caveat is filed, the Court will not appoint a personal representative of an estate until the Caveator has been given formal notice of the proceedings. Upon receiving formal notice, the Caveator has twenty (20) days to file an objection or competing petition. By filing the Caveat, a Caveator ensures that their potential adversary will not have access to estate funds for purposes of litigation. As discussed above, precluding the opposing party from using estate funds ensures that the competing parties will begin a will contest on equal footing. .

It is also important to keep in mind that there are certain formal requirements when executing a Caveat, so please consult a probate attorney to ensure your Caveat is valid and effectual under the law. 

Baskin Fleece handles all aspects of probate administration and probate litigation. To schedule an appointment with a BaskinFleece attorney, call (727) 572-4545. For more information about BaskinFleece, visit http://www.BaskinFleece.com.

 

Does a Will Increase Probate Expenses?

A will frequently reduces expenses.No. If there is property to be administered or taxes to be paid or both, the existence of a will does not increase probate expenses. A will frequently reduces expenses. If there is real or personal property to be transferred at your death, the probate court will have jurisdiction to ensure that it is transferred properly, either according to your will, or, if there is no will, in accordance with the inheritance statute. Thus, even if you haveA will frequently reduces probate expenses. no will, your heirs must go to court to administer your estate, obtain an order determining your legal heirs, or obtain a determination that administration is unnecessary. These procedures are often more expensive than administering your will, since a properly drawn will names the beneficiaries and delineates procedures to simplify the administration process.

For help or answers to will and estate 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.