No Valid Will? Here’s What Happens…

surviving spouseIf someone dies without a valid will, he or she is “intestate.”                                     

Even if the decedent dies intestate, his or her probate assets are almost never turned over to the State of Florida. The state will take the decedent’s assets only if the decedent had no heirs. The decedent’s “heirs” are the persons who are related to the decedent and described in the Florida statute governing distribution of the decedent’s probate assets if he or she died intestate.

1. If the decedent was survived by his or her spouse but left no living descendants, the surviving spouse receives all of the decedent’s probate estate. A “descendant” is a person in any generational level down the descending line from the decedent and includes children, grandchildren, and more remote descendants.

What happens when there is no valid will?2. If the decedent was survived by his or her spouse and left one or more living descendants (all of whom are the descendants of both the decedent and his or her spouse), and the surviving spouse has no additional living descendants (who are not a descendant of the decedent), the surviving spouse receives all of the decedent’s probate estate.

3. If the decedent was survived by his or her spouse and left one or more living descendants (all of whom are the descendants of both the decedent and his or her spouse), but the surviving spouse has additional living descendants (at least one of whom is not also a descendant of the decedent), the surviving spouse receives one-half of the probate estate, and the decedent’s descendants share the remaining half.

no will then what happens?4. If the decedent was not married at his or her death but was survived by one or more descendants, those descendants will receive all of the decedent’s probate estate. If there is more than one descendant, the decedent’s probate estate will be divided among them in the manner prescribed by Florida law. The division will occur at the generational level of the decedent’s children. So, for example, if one of the decedent’s children did not survive the decedent, and if the deceased child was survived by his or her own descendants, the share of the decedent’s estate which would have been distributed to the deceased child will instead be distributed among the descendants of the decedent’s deceased child.

5. If the decedent was not married at his or her death and had no living descendants, the decedent’s probate estate will pass to the decedent’s surviving parents, if they are living, otherwise to the decedent’s brothers and sisters.

6. Florida’s intestate laws will pass the decedent’s probate estate to other, more remote heirs if the decedent is not survived by any of the close relatives described above.

Wills in FloridaThe distribution of the decedent’s probate estate under Florida’s intestate laws, as discussed above, is subject to certain exceptions for homestead property, exempt personal property, and a statutory allowance to the surviving spouse and any descendants or ascendants whom the decedent supported. Assets subject to these exceptions will pass in a manner different from that described in the intestate laws. For example, if the decedent’s homestead property was titled in the decedent’s name alone, and if the decedent was survived by a spouse and descendants, the surviving spouse will have the use of the homestead property for his or her lifetime only (or a life estate), with the decedent’s descendants to receive the decedents’ homestead property only after the surviving spouse dies. The surviving spouse also, however, has the right to make a special election within 6 months of the decedent’s death to receive an undivided one-half interest in the homestead property in leui of the life estate provided certain procedures are timely followed. The spouse’s right to homestead property does not take into consideration whether the surviving spouse has one or more living descendants who are not also a descendant of the decedent.

BaskinFleece can be contacted at 727.572.4545

 
The information above 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.

4 Estate Planning Tips Before a Hurricane

Destruction by Hurricane Irma

Photo credit: Joe Raedle/Getty Images

In the wake of Hurricane Irma, many Pinellas and Hillsborough County residents are taking a hard look at their hurricane plansThese four tips will help you stay prepared as hurricane season marches on:

  1. Locate your important documents, including all estate planning documents.
  2. Review your estate planning documents. If your estate plan no longer meets your current intent, you should meet with an estate planning attorney to update your documents after the storm has passed.
  3. Attorney Randall Baskin

    Make sure that any original documents are kept in a dry, safe place until the storm has passed.

  4. Make multiple copies of your Declaration of Living Will and Health Care Surrogate Designation and keep the copies with you in the event you have a health emergency while evacuated.

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

Estate Planning and Joint Accounts: Pros and Cons.

Important Estate Planning Tip: Upon the passing of one of the joint owners of an account, the account automatically passes to the other person. However that can have many unintended consequences – find how in this 2 minute video:

For help or answers to will and estate 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.

5 Reasons to Review Your Estate Planning Today:

  1. Pay-on-death beneficiaries sometimes fail. Due to a change in computer software or a merger, it is possible for a financial institution to lose your pay-on-death beneficiary designations. As such, it is good practice to confirm designations with your financial institution at least once per year.
    estate planning
  2. There may be out-of-date contact information for the individuals named on your advance directives. Further, those individuals, due to a change of circumstance in their own life, may no longer be able to act on your behalf. In such a case, it is important to choose new fiduciaries with the ability to serve.
  3. Your intent may have changed. For example, as your children get older, they may become more viable candidates to act as fiduciaries during your lifetime or upon your passing.
  4. You are forced to locate your documents. It is important that you know where estate planningyour original estate planning documents are held, as well as any copies that have been produced. In an emergency situation, being unable to locate your advance directives could cause a delay in making important health care decisions. Additionally, upon your passing, the inability to locate your estate planning documents could cause a delay in probating your estate.
  5. Attorney Randall D. Baskin

    Attorney Randall D. Baskin

    A change in life situation, such as a change in wealth, relocation, divorce, birth or death, could drastically alter your estate planning. It is important to review your estate planning documents to ensure that they still reflect your wishes in light of any life changes. As your life evolves, so should your estate plan.

For additional information, please contact BaskinFleece at 727.572.4545.