All posts by JWise

How to File Probate in Florida

The term “probate” refers to the court supervised process of identifying and gathering the assets of a deceased person. The purpose of this process is to ensure that the estate of the deceased person is administered in a legal and orderly manner, in order to pay any outstanding debts that the person may have had, and distribute assets to the descendants/beneficiaries. In general, during the probate process the state uses a portion of the decedent’s assets to cover the cost of the process, after this, the state uses the remaining assets to pay all outstanding debts. If any assets remain after all debts are paid, they are distributed among the heirs of the deceased person, as stipulated in the decedent’s will, or according to the inheritance laws in the state if there is no will. However, some of the key procedures followed during the probate processes differ from state to state.

bereaved womanThere are two main types of probate administration under Florida probate law- formal and summary administration. In order to initiate the formal/court probate process in Florida, a family member/heir of the deceased person needs to file the necessary probate pleadings with the court. To file probate in Florida, you need to follow these steps:

• Submit the will of the deceased and the death certificate to the Clerk of Courts. You need to ensure that you submit the original will (not a photocopy).

• Determine the value of the probate estate- you need to calculate the value of the decedent’s estate before you file the appropriate probate pleadings with the court. If you do not know the market value of the probate estate properties, your attorney can help you determine the current value of different properties, and also let you know which of the decedent’s properties may be exempt from probate.

• Determine which probate administration process is most appropriate for you. There are different rules and procedures you need to follow/adhere to under the various probate administration processes. For instance, in order to use the summary/family administration process, the value of the deceased person should not have any debt and his/her estate must be below $75,000 (excluding the value of any real estate property). If the estate does not qualify for summary administration, you need to use the formal administration process. You need to hire a licensed probate attorney to represent you in the formal process unless you are the sole heir/beneficiary of the estate.

• Prepare and file probate pleadings with the appropriate court- under Florida law, you need to file probate in a court in the decedent’s county of residence. If the deceased had property in more than one county, you may have to file probate in more than one county. If you have a Florida. probate attorney, your attorney can prepare and file all the necessary probate documents for you. These documents include death certificate, oath of personal representative (The personal representative is the person, bank, or trust company appointed by the judge to be in charge of the administration of the decedent’s probate estate), Order admitting will to probate, Letter of administration, notice to creditors (sent to the decedents creditors by the personal representative)and tax documents.

Once you file probate, the probate process may last for three to six months depending on the facts of the situation. If your personal representative needs to sell some of the decedent’s real estate to settle some debts in the probate estate or has to deal with a lawsuit filed by decedent’s creditors, the probate process may last longer.

The smartest thing to do when involved in a Florida probate proceeding, is to find an experienced probate attorney. An attorney can speed up the process and help you avoid potentially costly mistakes.

 

Complicated State Laws Make Estate Planning Essential

Contrary to popular belief, estate planning for the future is not merely an antidote for the wealthy looking to escape taxes. Probate, property transfer, life insurance, annuities and inheritance can represent chaos without proper planning. Throw in family members, the Internal Revenue Service, state laws and legal officials and you have a bubbling cauldron of confusion. Estate planning gives you the power to manage your resources without interference.

By definition, estate planning is a process designed to help you manage and preserve your assets while alive, and to conserve and control their distribution after your death.

Your age, health, heritage, lifestyle, life stage, goals and other factors determine the special needs of estate planning. For example, you can have a small estate and may require specific people to receive particular items. Probably a simple will is all you need. Or you can have many responsibilities that require complex planning with sophisticated strategies to protect family members.

But keep in mind, a disability can affect anyone at any time and this is more than enough reason to consult a lawyer about drafting a will or estate planning.

Plans that Fit Every Family

The most basic plan that benefits every family is a living trust. Trusts and wills are the primary tools of estate planning as both allow you to decide who inherits your assets when you die, and who will administer, manage and distribute your estate when you’re gone.

The most common type of living trust, also referred to as family trust, is one that is revocable, which means that the customer has the power to amend or revoke the trust. The power of revocation or amendment is important to the customer, because we live in a changing world where financial and family circumstances often face modifications.

Advantages of a Living Trust

By funding a trust with your assets, you transfer those assets out of your name into the trust. Any new assets you purchase, you simply transfer those into the trust. You will become the trustee and the assets will be under your control. If you decide to move assets you do so as the sole trustee.

Upon your death, your successor trustee will take control, according to your written directions, without any involvement of the probate court.

The main advantage of a living trust is that the family avoids the need for costly and inconvenient court administration (Probate).

• Families can save thousands of dollars in the long run.

• Living trusts act as an organized administration that provides the privilege to carry out estate planning in private.

• Living trusts are private matters; probate cases are public record and open to inspection by any person.

Nuts and Bolts of a Revocable and Irrevocable Living Trust

Revocable trust, also referred to as a Living Trust is flexible and you can modify the provisions at any time. In other words, if you need to make changes down the road or have second thoughts like a change of beneficiary or switch trustees, you can easily modify the terms. The pitfall of a revocable trust is that with so much flexibility, funded assets could be considered your personal assets, which leave you vulnerable to creditors.

An irrevocable trust cannot be cancelled nor any assets removed once the documents are signed unless all beneficiaries and the court agree to dissolve the trust. It’s often impossible to accomplish this without good reason. However, in certain situations, an attorney may be able to request an amendment if there are changes to the beneficiaries.

Advantages of an Irrevocable Trust

Irrevocable trust offer several distinct advantages, especially for long-term health care planning; however, to really benefit without neglecting unforeseen elements, it’s wise to communicate with a Florida attorney. Consider the benefits of an irrevocable trust;

• Asset protection
• Shield assets from eligibility criteria when applying for government benefits like Medicaid and Social Security Supplemental Income (SSI)
• Possibility of avoidance of federal gift tax

Flexibility

The centerpiece of living trusts is often the special considerations, managed according to your pre-specified rules. These trusts can incorporate special features to handle various family dynamics.

These special approaches may include special needs trusts for the care of children or disabled family members, trusts for pets, custom arrangements for a “blended family,” often due to a remarriage. These trusts can specify guidelines that include children from previous marriages, adopted children, stepchildren, etc.., and provisions that protect the “waste” that of a child’s inheritance from creditors, and other fraudulent individuals.

Protecting Assets

Living trusts accomplishes the essential purpose of a will. Assets transfer to your beneficiaries smoothly, without the burden of probate. By avoiding probate with a living trust, it is almost impossible to contest your pre-specified directions.

Deciding Who Gets What and When

Many parents impose restrictions when estate planning for the future. Some provisions are not overly restrictive, but many protect the child’s inheritance, however big or small, until they reach a certain age.

• Limiting access to funds until child reaches anywhere from 18 to 25
• Giving beneficiaries a portion of their inherited principal at varied intervals
• Declaring who will share real property, and enforcing strict guidelines to protect from outside influences

Why You Still Need a Will

Seven out of ten individuals die without a will and most people don’t understand if you die intestate (without a will) your state will distribute your property according to state law. In addition, without a will family members will probably pay more than necessary in federal and state taxes.

Even if you have a living trust, a will is desirable to provide for the guardian of children, in the event there are no surviving parents or grandparents.

Many individuals go to great lengths to discuss their requirements after death and yet they neglect to enforce their plans legally, often causing their family to weather the burden of probate. Consulting with a Florida lawyer will ensure you haven’t neglected any essential decisions. Estate planning for the future is simply taking control to protect your assets and detail your wishes before someone else makes the decisions for you.

Updating Your Estate Plan Following A Divorce

A divorce often necessitates major estate planning. The division of property, custodial rights and the establishment of spousal support all need to be considered and finalized. In addition to economic and emotional rifts, it is often easy to overlook the estate plan. This negligence, however, can be very detrimental to all who are involved. Following are a few essential components in an estate plan that must never be ignored.

Personal Will

divorce Start modifying your estate plans by altering your will. This document may have been executed prior to marrying your partner, establishing a family and acquiring your current level of financial stability and thus, there have likely been a number of considerable changes in your circumstances. The areas of your will that will need to be amended include the appointment of a personal representative and asset distribution. It is very easy to alter your will, either by executing a codicil or by rewriting it entirely.

Trusts

Whether before or during your marriage, make certain to review the terms of established trusts with an estate planning attorney in the state of Florida. It may be necessary to name new beneficiaries or trustees. Revocable Living Trusts can be easily altered to fit your changing circumstances and needs.

Other trust types such as Qualified Personal Residence Trusts, charitable trusts and Irrevocable Life Insurance trusts can be far more difficult, if not impossible to alter. This is due to the fact that the original motivation for the inception of these trusts is the execution of irrevocable elections. Instruments like these are normally structured to provide mutual benefits for both parties. If either spouse assumes legal authority to change any elections thereunder, there is usually a reversal of tax advantages as well.

Life Insurances

If you have named your spouse as the beneficiary, you likely want to designate another party to receive the death benefits should you pass away. In many instances, it is only necessary to contact the insurer. Keep in mind that Domestic Relations courts routinely deem any cash value for life insurances as part of the marital estate. For this reason, these monies are subject to equitable division. It is additionally common for divorce courts to order that a minimal amount of life insurance be maintained for the protection of all minor children.

Learn about the payout options for death benefits that are offered by your carrier. As an example, if your children are still fairly young, think about getting a structured benefit rather than requesting a lump sum payout. This ensures continuing subsistence payments for a much longer period than a single, lump sum payout is likely to last. It is often possible to additionally include a combination of single payments and period payments in order to ensure that future living costs such as college tuition are covered.

Conclusion

The best source for accurate legal assistance and advice is a reputable Florida estate planning attorney. This professional can make a comprehensive exploration of the available revisions for your estate plan in order to find options that best suit your personal circumstances. Creating an optimal strategy makes it necessary to review complex legal documents such as estate and statutory tax previsions, prenuptial agreements, Social Security regulations and even the terms of private retirement plans like pensions and 401k plans. Avoid procrastination and oversight. Get in touch with a trusted provider to begin creating a stable foundation for a brighter and better future right now.

If you are fortunate enough to live in South Florida, visit http://wfplaw.com, call the estate planning attorneys of Wild Felice and Partners at (954) 944-2855 to set your estate plan right.

The Florida Probate Process: An In-depth Look

When a person passes away and their assets must be identified, gathered and distributed to their beneficiaries and their debts settled, their estate goes through a court supervised process known as probate. In this process, the assets of the deceased individual (also known as the decedent) are first identified and inventory, then used to first pay for the cost of the probate proceeding, and then used to pay any outstanding debts on the decedent’s behalf. Finally, the remainder of the estate is distributed to the beneficiaries of the decedent.

The probate process within the state of Florida is covered under the Florida Probate Code as found in Chapters 731 through 735 of the Florida Statutes. The Florida Probate Rules, Part I and Part II (Rules 5.010-5.530) also cover the rules governing probate proceedings throughout the state of Florida.

Examining the Need for Probate

The probate process is a necessary task for transferring ownership of the decedent’s assets to their beneficiaries. Probate ensures a smooth and orderly transfer of probate assets to the decedent’s beneficiaries, given a valid last will and testament is involved. Otherwise, probate becomes necessary to pass ownership of the estate’s assets as dictated under Florida law if the decedent did not leave behind a will.

The probate process is also necessary to settle the financial affairs of the decedent after he or she passes away. Proper administration allows for creditors to be duly compensated for any debts left behind by the decedent, thus settling financial matters and allowing for the beneficiaries to receive the decedent’s probate assets. The probate has a responsibility to pay the legitimate debts of the decedent prior to disposing the estate to its beneficiaries.

Anyone who is nominated as a personal representative of the probate estate should always seek the counsel and assistance of a qualified attorney. Any number of legal issues can arise during the course of probate proceedings, which is why it is so important to have someone on hand who is familiar with the challenges often presented to the probate process. The personal representative’s attorney is tasked with representing that person only and not the beneficiaries of the probate estate.

Occasionally, there may be a provision in the will mandating a particular law firm or lawyer for the personal representative. These provisions are not legally binding, which leaves the personal representative free to choose any lawyer they wish to assist in the process.

Probate Procedures Explained

Probate proceedings are supervised by a circuit court judge. The judge is responsible for determining the validity of the decedent’s will as well as confirming the identity of the heirs to the probate estate. The judge will also decide whether the personal representative nominated in the decedent’s will is qualified to serve under that capacity. Those who pass muster will receive “Letters of Administration” as evidence of their authority to administer the estate.

The state of Florida offers four types of probate procedures:

Full administration — This is the most common type of probate procedure and is often considered the standard administration process. To summarize the process, it involves naming an executor to the estate as well as the petitioning of the report for administration. Both a case number and file are created for this process, while notification of all beneficiaries, known creditors and unknown creditors takes place. The full administration process also involves inventorying all property related to the estate as well as paying creditors and distributing the estate to the heirs as listed in a will.

Summary administration — This procedure is only available if the value of the estate involved in the probate process does not exceed $75,000 and if the decedent’s debts are either paid in full or if the creditors do not object to the process. This excludes property that is exempt from creditor claims such as homestead property. Those who receive estate assets using this procedure usually remain responsible for claims against the decedent for a two-year period after the date of death. As a result, this procedure is best used in cases where the decedent has been deceased for over two years with no prior administration of the estate in question, as this effectively cuts off all claims by most creditors.

Disposition without administration — This probate procedure is available in cases where estate assets consist only of property that is exempt from creditor claims by law and nonexempt personal property whose value is less than up to $6,000 in funeral expenses and the amount of medical and hospital expenses incurred during the last 60 days of the decedent’s final illness, if applicable. Although it’s recommended that a lawyer assist in the process, these procedures are usually carried out without their assistance. While the above provides a brief explanation of the process, the exact procedure varies among other counties.

Ancillary administration — This form of administration applies if the decedent owns property within the state of Florida but dies a resident of a state other than Florida and their will is probated in their state of residence. Steps in the state of residence does not have jurisdiction over real property located in Florida, a court file must be opened in the state of Florida and a Florida court must enter orders regarding the distribution of the property in question.

The time it takes for the probate process to conclude depends on each individual case – due to a wide variety of factors, it may take some probate administrations longer to conclude than others. At minimum, a probate estate must remain open for at least three months to allow any creditors to make their claims. A simple probate estate may take anywhere from five to six months to conclude.

In addition to the circuit court judge, personal representative and the attorney providing legal assistance to the representative, other interested parties may be involved in the probate process. For instance, the Internal Revenue Service (IRS) may become involved as a creditor to claim any federal income taxes owed by the decedent as well as taxes owed by the probate estate, among other tax matters.

Defining Probate Assets

Probate assets are generally defined as those owned by the decedent at the time of his or her death. For instance, a bank account or investment account in the decedent’s sole name is considered a probate asset. However, a bank account or investment account that is payable or transferable on death to another individual or jointly held with rights of survivorship is not considered a probate asset.

Probate assets may also include those owned by the decedent with one or more co-owners without an automatic succession of ownership at death. Life insurance policies, individual retirement accounts and annuity contracts payable to the decedent’s estate, along with real estate titled in the decedent’s sole name are also probate assets.

According to Florida law, the surviving spouse and children of the decedent are protected from total disinheritance, giving them the opportunity to receive assets from the decedent’s probate estate.

Non-probate Assets

Some assets belonging to the decedent may be passed on to heirs, spouses or beneficiaries without the need for probate court approval. These assets commonly include:

  • Assets held as part of a living trust
  • Assets with a designated beneficiary, including a POD bank account, processes of a life insurance policy or a retirement account.
  • Property held in joint tenancy, such as a shared bank account or a house owned by a couple.

5 Elements of a Good Estate Plan

Everybody would die one day. Man is different from other animals because he knows beforehand that he will die someday. Knowing this is very important to plan for the future. What will happen to your loved ones after your demise. Sure, no one likes to dwell on their demise, but you must plan ahead to avoid any confusion or legal issues after you have gone.

mother and daughters

What will happen to all that you have collected during the lifetime, in the guise of properties, stocks, bonds, securities, fixed deposits, jewelry, vehicles, furniture, lands, insurance policies and all other valuable items? Why did you amass them in the first place? Surely, you wanted your loved ones to have all of these items and enjoy their lives, once you have left this world. All these items that a person own is called an “Estate”. An estate plan is a means of passing these valuable items to the next generation.
There is a myth in the world that only wealthy people will need a estate plan. Estate planning is essential for the super wealthy, as well as, the not so wealthy people. Estate planning is the establishment of a management plan to deal with all your assets, after you have left this world. The owner of the assets is referred to as the “testator” in the estate document. This article will highlight the five elements that should be included in a good estate document.

1. The most important point is to see that the testator’s wish in distributing his or her assets are clearly stipulated in the document. No room should be left for someone else to interpret it differently after the testator’s death. This will go against his or her wish of distributing the assets equally to the members of the immediate family.

2. The opportunities to challenge the document should be minimized. If a beloved one is left out of the estate planning by mistake, he or she may stake a claim once the testator is dead and gone. This type of situation will cause a rift between family members, and tarnish the good name of the testator too. You must be aware of this before finalizing the plan.

3. The legal and familial responsibilities of the testator should be given high priority when preparing the estate document. The other responsibilities such as social and official should come right after this. Any charitable givings that the testator was engaged in, should also be included in the document.

4. The document should allow the beneficiaries to protect the inheritances from creditors or estranged spouses. They should be given the freedom to chart their own path in tax related matters, going forward.

5. The most important factor of a good estate document is to prepare it so that the testator and all other beneficiaries can understand it clearly. Most of the plans lack this clarity, and the beneficiaries end-up spending more on professional fees in order to get a clarification that they can understand.

Estate Planning Lawyers in Fort Lauderdale, Florida

The Importance of an Experienced Florida Probate Attorney

grieving womanIn Florida, once an individual owns assets during the time of his or her death, the process of transferring these assets to the person’s beneficiaries is known as probate. The process of probate can be very overwhelming and confusing especially since the family members and beneficiaries of the deceased are grieving. Because of this, hiring an expert and experienced probate attorney can be a very good move. In order to start a probate case, it is important to prepare a file a Petition for Administration with the Florida Probate Court, which is situated in the country where the individual resides during the time of death. The filing will start the formal administration process.

The Florida probate cases can be handled in two different ways. If the assets of the decedent are worth more than $75,000, it is essential to proceed to the formal probate administration process. Nonetheless, if the assets are valued less than $75,000, then it is possible to use a summary administration in order to make the process less complicated. The process of the formal administration probate will also include a personal representative and Letters of administration. However, in the state of Florida, formal administration is considered to be the most common method of probate.

However, a legal process of going through the probate court is always necessary regardless of the probate method that is used. This is why hiring a probate lawyer or attorney is considered necessary. The process will include a lot of legal issues that any lay man would find confusing and perplexing to understand. The attorney will be present to help guide the client throughout the process and handle all the important and necessary requirements.

In other cases, once the time of death of a person has already been two years or more ago regardless of the value of the assets, a summary administration is highly possible. However, there are also times when the estate is required to go through formal administration even is the worth of the assets are under $75,000.Once an estate is involved in a legal matter, a formal administration process or method is necessary. This is also applicable once the decedent owes any money to creditors. These are the important matters that should be discussed with the Florida probate lawyer.

Each and every probate case is considered unique. This is why it is difficult to know when a case will be tied up to the probate. However, the amount of time that a probate administrator will take will also depend on how diligent he or she is in making the process move. There are times when it is already necessary to sell the real estate in order for the probate to be settled. Aside from this, a contested will or any disputed claims can also prolong the entire probate process. Nonetheless, an average case can take approximately 5 to 6 months to finish.

There are a lot of things that should be taken into account once an estate goes to probate. It is good to know that an expert and experienced probate attorney from Florida can be present to help make the process simpler. In other words, the probate process is something that should be left in the hands of a good and reputable attorney.

Understanding Revocable and Irrevocable Trusts

attorney and clientsWhat is a trust?

A trust is a document, made legalized through the power of an attorney and application of law principles, which specifies the assignment of declared assets upon the death of an individual. A trust should not be used as a substitute for a will but instead, in conjunction with it. Furthermore, a trust helps protect the assets that the beneficiaries would receive and so as decrease the burden of estate tax. There are different types of trust and the most common is the living trust. This type of trust is activated while the person, who applied for it, is still living. The process taken here is simple. The person would just have to move the assets into the trust and they would immediately become a part of it.
There are two categories under a living trust. These are revocable trust and irrevocable trust. The difference between the two is very clear. Revocable trust can be changed or revoked while the other one is not. However, the definition of the two is quite intricate.

Defining Revocable Trust

A revocable trust is a legal document stating that a set of assets will automatically be directed to the declared beneficiary upon the death of the applicant or trust holder. Most of the time, revocable trust includes cash but it can also be tied up with a checking or savings account. Since it is revocable, the trust holder can change the terms of the trust anytime as long as he/she is still living. Also, the holder can access the assets in the trust in case of emergencies.

The word “revocable”, when applied to financial organizations such as the IRS, refers to bank accounts with payable-on-death provisions. Interested applicants can simply fill out the forms provided by the bank and state who will receive the funds contained in the account upon the applicant’s death. This provision works similarly like a trust. Also, this is a great account management scheme where the applicant is given the power to allocate his/her account.

Defining Irrevocable Trust

An irrevocable trust is a complex type of legal agreement. It is considered as a separate entity. Here, a federal tax identification number is required. This is usually filed by the tax attorney or the accountant. The applicant would have to go to the state’s Bureau if Internal Revenue and comply with the documents needed for this transaction.

Since the trust is irrevocable and is a separate entity, the creator of the trust will have no access to the assets deposited under it. These assets will also not be owned or could not be touched by the beneficiaries until they are released. For example, if the creator has established a $200,000 trust account and the agreed term is that $10,000 will go to the beneficiary every year, no one could receive and release the money prior to that term. So, the beneficiary would just have to wait another year before he/she will get the other $10,000 until such time that the whole account will be empty.

What type of trust will work for you?

An estate plan is important in order to properly assign one’s assets to intended beneficiaries. Estate planning may cover both revocable and irrevocable trust. Considering which one is right for you would entail an understanding on how you want your assets to be handled upon death, how flexible you would want them to be while you are still alive and what type of assets you will be leaving behind. Any of these trusts has different consequences and benefits. You can consult a legal consultant (such as an attorney) in order to have a clearer view on the type of trust that you can avail and their agreements as well.

Why This Name for an Estate Planning, Probate and General Asset Protection Web Site

Doughadeer.com is indeed a strange choice for a domain name for a Web Site that deals with legal  issues related to asset protection, planning an estate and probate administration, but it was a cute name and it was available.

The truth is I didn’t exactly know what topics I would fill these pages with when I purchased the domain. I just knew I liked the sound of it.

When I gave it some thought and played with the name for a while, I realized that it would be a perfect domain in which to publish articles explaining the nature of proper estate planning and protection, after all “dough is a common enough slang for money.  As for the “deer” part, it’ no doubt would have better to have purchased a domain with “dear” instead of “deer ” in the title, but it just wasn’t available and to paraphrase a former sociopathic Secretary of Defense, we have to go to Web with the name we have not with the one we wanted.

And so dough-a-deer is a Web Site about protecting your assets, establishing a smart and secure estate plan and handling probate should the need arise (which it won’t if you handle the estate planning properly).

My  inspiration and my source of information is the staff at the Fort Lauderdale based law firm of Wild Felice And Partners. This area of law is their specialty. They can be reached at (954) 944-2855.

Forgive the plug, but they’ve earned it.