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Monthly Archives

March 2019

Do I need more than a Will for my estate planning?

By Asset Protection Planning, Estate Planning

While obtaining a Last Will and Testament may be the impetus for starting the estate planning process, there are several other testamentary documents which can make end-of-life decision-making significantly less confusing and stressful for you and your loved ones. For example, other documents that are sometimes created and/or updated during estate planning include a living Will or advanced directive, a power of attorney, and a living Trust.

For help creating or updating any of these documents, the attorneys at Bach, Jacobs & Byrne, P.A. are at your service. Call now at (941) 906-1231.

March 29, 2019
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(Updated 2018) What determines a disabled adult child, and what Social Security benefits can they receive?

By Government Benefits, Guardianship

A disabled adult child, or “DAC,” is an individual 18 years or older with a disability that began before they reached age 22. Such an individual is considered a disabled adult child because the Social Security benefits which they receive are based on the earning records of their parents.

When the parent of a disabled adult child retires, the DAC is entitled to receive 50% of the parent’s retirement benefit. For example, if the child is currently receiving income at the current Supplemental Security Income (SSI) rate of $750 and he/she is eligible for $790 from the parent’s retirement benefits, the child receives $790 – the child is entitled to accept the higher amount.

When a disabled adult child’s parent dies, the benefit is increased to 75% of the parent’s retirement benefit. If the surviving parent also dies, the DAC may contact the Social Security Administration to apply to switch over to the higher benefits.

March 25, 2019
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How will remarriage affect my estate planning?

By Asset Protection Planning, Estate Planning

Remarriage may add complexity to the estate planning process, especially when there are children from a previous marriage. All testamentary and end-of-life planning documents should be reviewed after a subsequent marriage.

In the event where the decedent had a Will that was not updated after remarriage, the spouse from the remarriage is considered a “pretermitted spouse,” one unintentionally left out of the testator’s Will. In this case, the spouse will be entitled to a portion of the probate estate in the absence of a prenuptial agreement to the contrary. Alternatively, the spouse also has the option to opt for the elective share: 30% of the potentially larger “elective estate.” Choosing between these two options is often simply a matter of which share has greater value.

Updating the testamentary bequests to the surviving spouse may avoid the issues involved with having to make these elections after death. In addition to the Will, the spouses must consider any changes they wish to make to their health care directives, medical release forms, real estate deeds, and more.

For help revising or drafting your estate planning documents, call the attorneys at Bach, Jacobs & Byrne, P.A. at (941) 906-1231 today.

March 21, 2019
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What is a guardian advocate in Florida?

By Elder Law, Guardianship

The appointment of a guardian advocate is a less intrusive alternative to a full guardianship. As defined by the Florida Statutes, a guardian advocate may be appointed “…for a person with developmental disabilities, if the person lacks the decision-making ability to do some, but not all, of the decision-making tasks necessary to care for his or her person or property or if the person has voluntarily petitioned for the appointment of a guardian advocate.” A guardian advocate may also be appointed for mental health patients who are incompetent to consent to treatment.

What makes a guardian advocacy distinct from a guardianship is that, whereas a guardian may be assigned to any incapacitated individual, there are specific eligibility requirements that a ward must meet for the court to appoint a guardian advocate. In addition, the appointment of a guardian advocate does not require an examining committee’s finding of incapacity. The duties and responsibilities of the guardian advocate are the same as those of a guardian – however, a guardian advocate may not be required to file an annual accounting on behalf of the ward, if the court determines that the ward’s only income is Social Security benefits.

The attorneys at Bach, Jacobs & Byrne, P.A. are highly-skilled and experienced guardianship and elder law attorneys. If you or a loved one is seeking a guardian advocacy, please call us at (941) 906-1231 to set up a consultation.

 

March 19, 2019
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How is the Internal Revenue Service (IRS) involved in probate?

By Probate, Tax Law

It is the duty of the personal representative of an estate to oversee the repayment of debts owed by the decedent as well as to submit the final tax returns for the decedent. It is necessary for the personal representative to complete a final federal individual income tax return (Form 1040), being sure to make note of all income up to date of death as well as any credits or deductions to which the decedent is entitled. Then, the personal representative may need to file Form 1041, the U.S. Income Tax Return for the Estate. For federal gift taxes, Form 709 may be filed; Form 706 is the return filed for the federal estate tax, if it is required.

If the decedent has not kept up to date with his/her tax returns, it is up to the personal representative to pay off the tax returns from previous years from assets of the estate. A personal representative may verify the tax return history of a decedent by submitting Form 4506-T, Request for Transcript of Tax Return.

If you are a personal representative in need of probate assistance or wish to evaluate whether a probate proceeding is necessary to administer an estate, please call the attorneys at Bach, Jacobs & Byrne, P.A. at (941) 906-1231 to schedule a consultation. Attorney Fred Jacobs is a Florida Board Certified Tax Lawyer who can also assist you with the preparation and filing of an estates tax return.

March 15, 2019
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In probate, what happens if the available assets are insufficient to pay off all claims?

By Probate

During a probate process, the personal representative of the estate has to distribute the assets of the decedent according to classes specified by the Florida Probate Code. First, the Class 1 expenses are paid off: the costs of probate administration, the compensation of the personal representative and his/her attorneys, etc. Class 2 expenses – funeral, internment, and grave marker costs – follow, with debts and taxes as Class 3. Final-illness medical expenses constitute Class 4, family allowance makes up Class 5, and other costs comprise the final classes.

When there are not enough assets in an estate to pay each class of expenses in full, the assets received by each class must be abated. The order for abatement of assets received is presented in the Florida Probate Code.

If you have questions about the consequences of a potentially insufficient estate, you should consult with an attorney experienced in trusts & estates. The attorneys at Bach, Jacobs & Byrne, P.A. are seasoned probate and estate attorneys who can advise you about your options. Call (941) 906-1231 to set up an appointment.

March 11, 2019
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How can I file a wrongful death claim?

By Elder Law, Probate

Florida Statute §768.19 states:

When the death of a person is caused by the wrongful act, negligence, default, or breach of contract or warranty of any person, and the event would have entitled the person injured to maintain an action and recover damages if death had not ensued, the person that would have been liable in damages if death had not ensued shall be liable for damages as specified in this act notwithstanding the death of the person injured.

A wrongful death lawsuit may be filed by the personal representative of the decedent’s estate within four years of his/her death. Any spouse, child, parent, or dependent blood relative of the decedent may ask the personal representative to file the wrongful death claim on their behalf. Examples of incidents that can result in wrongful death include:

-Automobile accidents

-Medical malpractice

-Defective products

-Workplace accidents

-Intentional criminal actions

Typically, wrongful death cases are pursued by personal injury attorneys. However, because of the probate aspects of such cases, retention of a probate attorney is also necessary. If you are a personal representative of an estate, or if you believe your loved one has recently been the victim of wrongful death, the attorneys at Bach, Jacobs & Byrne, P.A. are skilled probate litigators and elder law attorneys who can assist you with the commencement of a probate proceeding to pursue a lawsuit due to wrongful death. Call (941) 906-1231 to schedule an appointment.

March 7, 2019
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What is Florida’s non-claim statute?

By Probate

Florida Statute §733.702 is often referred to as the “non-claim statute.” It sets forth that:

[N]o claim or demand against the decedent’s estate that arose before the death of the decedent; no claim for funeral or burial expenses; no claim for personal property in the possession of the personal representative; and no claim for damages… is binding on the estate, on the personal representative, or on any beneficiary unless filed in the probate proceeding on or before the later of the date that is 3 months after the time of the first publication of the notice to creditors or, as to any creditor required to be served with a copy of the notice to creditors, 30 days after the date of service on the creditor.

In other words, with certain exceptions, any claim against an estate that is not filed within the specific time constraints of the Florida Probate Code is not valid. No formal objection must be filed to bar a claim made after the expiration of the creditor claims period: only fraud, estoppel, or insufficient notice may serve as grounds for special extensions.

The attorneys at Bach, Jacobs & Byrne, P.A. are trained probate litigators and trust & estate attorneys. If you need assistance as a personal representative, or if you would like to review your own estate plan documents, please call us at (941) 906-1231 to schedule a consultation.

March 5, 2019
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What is “decanting” of a Trust?

By Asset Protection Planning, Estate Planning

“Decanting” refers to transferring the assets from an irrevocable Trust into another Trust. Florida has a “decanting statute” that describes the requirements of legal decanting under the Florida Trust Code.

There are multiple motivations a trustee might have for decanting. For example:

-To fix a drafting mistake

-To correct certain Trust provisions to conform to new laws or circumstances

-To combine the Trust with another Trust

-To change trustee powers

-To add or remove a trustee

However, there may be other appropriate methods of modifying a Trust applicable to your situation, depending on the circumstances. If you would like to review an existing Trust and discuss your options for modifying the Trust, including the possibility of decanting, or if you would like to create a new Trust, please call the attorneys at Bach, Jacobs & Byrne, P.A. at (941) 906-1231 to set up a consultation.

March 1, 2019
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