Tag Archives: will

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.