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Monthly Archives

November 2013

Home for the Holidays: Talking With Your Family About Your Estate Plan

By Estate Planning

Question:     How do I talk to my family about my estate plan?  We’ll all be together this year for the holidays and I thought now would be a good time.

Answer:    Talking to your family and beneficiaries may be one of the most important parts of managing your estate before you die.  Whether to let them know about the content of your will and the distribution plan for your assets is up to you.  Open communication may help allay anxieties and allow for an honest conversation.   If you are comfortable with full disclosure, some clients allow their children or close family members to read their will or even hand out copies for them to keep.   You may want to keep the extent of your estate private, but simply let them know that you’ve taken the steps to plan for this inevitability.  It is helpful to let your family know who your estate planning attorney is so they know where to find your documents.  We recommend you review your existing estate plan whenever there is a major change in your life, such as illness, death of a family member, major financial changes and disability of a family member.  But the conversation can be emotionally charged and it is understandable that some people because of family dynamics would prefer to avoid it during their lifetime.  The New York Times published an article earlier this year about how to broach the topic of estate plans with a parent, which can be found by clicking here.

November 29, 2013
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Can Lawyers Be Beneficiaries of a Client’s Estate in Florida?

By Elder Law, Estate Planning, Probate

Question:  I was appointed personal representative of an estate and I saw in the will that the lawyer who drafted it wrote himself in as a beneficiary of the estate.  That seems inappropriate.  Is that ethical?

Answer:    Unless the attorney is related to the deceased client, Florida law prohibits such a gift.  The Florida Legislature passed a law that became effective October 1, 2013 that voids a gift to a lawyer, or certain persons related to or affiliated with the lawyer if the lawyer prepared the instrument making the gift or solicited the gift.  An exception is made for the lawyer or recipient of the gift who is related to the client.  If you are the personal representative of an estate and would like assistance with the administration of the estate, contact Bach & Jacobs to have your estate planning documents reviewed by our attorneys.

November 26, 2013
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Are Holographic Wills Valid in Florida?

By Elder Law, Estate Planning, Probate

Question:   I read on the internet that I could handwrite my own will without having the formality of witnesses and that the will would be valid for probate.  Is that true?

Answer:    While you can certainly handwrite your will, in order to be valid in Florida a will must be signed in the presence of two witnesses, who must also sign the will in the presence of the testator and one another.  Some states recognize handwritten or ‘holographic wills’ and excuse the lack of other formalities, such as witnesses, but the Florida Probate Code does not.  If one tries to have a holographic will admitted to probate in Florida that did not comport with the proper formalities of will execution, the decedent’s estate will be distributed according to the laws of intestacy, not the provisions of the invalid will.  If you are concerned that your will or trust may be invalid under Florida law, contact Bach & Jacobs at (941) 906-1231 to have your estate planning documents reviewed by our attorneys.

November 22, 2013
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Can an Out-of-State Personal Representative Bring a Wrongful Death Action in Florida?

By Elder Law, Probate

Question: I am the personal representative of an estate located outside of Florida.  The deceased died in Florida in an auto accident.  However, the deceased did not reside there or own any assets in Florida.  Can an out of state personal representative bring a wrongful death action in Florida even if there is no ancillary probate proceeding in Florida?

Answer:    Yes.  There may be instances where the resident of another state dies in Florida without having any assets in Florida that would require a probate proceeding in Florida.  Under Florida law, a foreign (non-Florida) personal representative may file a wrongful death claim in Florida court if the activities that gave rise to the action occurred in Florida.  The personal representative that brings the suit does not have to be a Florida resident.  The foreign personal representative will want to retain an attorney licensed in Florida to represent them in the action.  Additionally, the out of state personal representative or executor will need to present duly authenticated letters of administration from the other state’s probate court.

November 19, 2013
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Tips for Florida Personal Representatives: How to Locate Online Assets for Probate?

By Elder Law, Probate

Question:  My husband recently died.  He was very tech savvy and handled all of our finances online.  If the court appoints me personal representative, how am I going to find all his financial assets and accounts for administration of his probate estate?

Answer:    Your situation is part of a growing trend as we move to a ‘paperless society.’  A good place to start to locate assets for the purposes of probate administration are smartphones, computers, email, and voicemail.  You can look for information about assets by looking on your husband’s computer for favorites folders and websites, bookmarked websites, browsing history, and especially any financial software.  If you need assistance with the handling of your husband’s estate, you can contact the attorneys at Bach & Jacobs.  Our team stays on the cutting edge technologically and can show you new and innovative ways to identify all assets.  You may even find that there are assets out of state that require an ancillary administration in the other state.  Contact Bach & Jacobs at (941) 906-1231 to assist you with identifying and valuing digital assets for both in-state domiciliary probate administration or ancillary administration in Florida.

November 15, 2013
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Income Tax Refunds and Medicaid Qualification

By Medicaid Planning, Tax Law

Question:  If I receive a federal income tax refund, could the income from the refund disqualify me for Medicaid?

Answer:    No, the income you receive from a federal income tax refund, even if it is a ‘refundable’ income tax credit (liked the Earned Income Tax Credit), is not counted as income for purposes of Medicaid eligibility.  The Medicaid rules, section 1640.0593 Assets Excluded by Federal Law, states: “Federal income tax returns, including refundable tax credits (EITC and Child Tax Credit) and over-withholding (tax refunds) are excluded as income and assets in the month of receipt and will continue to be excluded as an asset for 12 months from the date of receipt”.  Therefore, reporting the receipt of the tax refund to the Department and Children and Families is not necessary.

November 12, 2013
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Summary Administration for an Ancillary Probate Estate

By Elder Law, Probate

Question:  I am the personal representative for someone who died out of state and is not a Florida resident.  However, the deceased owned land in Sarasota County.  Do I need to open an ancillary probate in Sarasota?  If so, does it have to be the full formal probate or can it be the expedited administration?
Answer:    Even if the decedent’s estate is administered by an out-of-state probate court, assets located in Florida, especially real estate, may have to be administered by Florida’s probate courts.  An ancillary probate in Florida may be handled in an expedited way (called a “summary probate”) or a formal probate depending on the facts of the case and the value of the assets.   Bach & Jacobs, P.A. frequently assist people with Florida ancillary probate administrations.  If the real estate is titled solely in the name of a decedent, then there is no alternative to probate to correctly transfer title upon sale or transfer to the heirs. If you need assistance with the probate of a non-Florida resident’s estate assets in Florida, contact Bach & Jacobs at (941) 906-1231.  We can review your case and let you know if summary probate or formal probate is appropriate for your particular Florida ancillary probate proceedings.

November 8, 2013
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Probate Administration When the Will is Lost

By Estate Planning, Probate

Question:  Before my father passed away, he told me he had appointed me personal representative of his estate.  I know I need to initiate a probate proceeding to administer his estate, but I can’t find his will.  What do I do?
Answer:    If someone dies without a will, the distribution of the decedent’s estate is governed by the laws of intestacy and the decedent is considered to have died “intestate.”  This should only be used when one has no known last will.  If a will was known to exist but is lost, Florida has procedures to establish a lost or destroyed will so that the estate is administered according to the deceased’s last will.  The essential elements of the procedure are to (1) submit a “correct copy” of the will; (2) provide testimony of at least one “disinterested witness” to the will signing and (3) provide evidence proving that the deceased did not intend to destroy the will.  Bach & Jacobs, P.A. has experience in complex probate matters.  If you are seeking to have a lost will admitted to probate, contact the attorneys at Bach & Jacobs at (941) 906-1231 for assistance.

November 5, 2013
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