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Bach, Jacobs & Byrne, P.A.

What is the “spendthrift provision” in a Trust?

By Estate Planning, Probate

Florida’s spendthrift provision protects Trustees and beneficiaries from creditors seeking to collect on a beneficiary’s debts and from the beneficiaries themselves, pledging their interest in the Trust as collateral. Essentially, the provision stipulates that no creditor can access the assets in a Trust designated to be distributed to certain beneficiaries, as long as the assets remain in the Trust. However, as soon as the beneficiaries receive their assets from the Trust, the creditors are allowed to seek repayment from them.

For more information about the spendthrift provision, you can look up Florida Statute §736.0502 at www.leg.state.fl.us/Statutes. To review an existing Will or Trust or for help creating one, please contact the attorneys at Bach, Jacobs & Byrne, P.A. at (941) 906-1231.

 

January 22, 2019
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What constitutes undue influence in a Will or Trust contest?

By Estate Planning, Probate

The Florida Supreme Court case which has set the standard for determining undue influence in Will disputes is the seminal case of In re: Estate of Carpenter, 253 So.2d 697 (Fla. 1971), which held that: “It is established in Florida that if a substantial beneficiary under a will occupies a confidential relationship with the testator and is active in procuring the contested will, the presumption of undue influence arises.”

In terms of proving that that a beneficiary was active in procuring the Will, the Carpenter court lists seven criteria which may be used in doing so:

  1. The beneficiary was present at the execution of the Will
  2. The beneficiary was present on occasions when the testator expressed a desire to make a Will
  3. The beneficiary recommended that an attorney draw the Will
  4. The beneficiary knew the contents of the Will prior to execution
  5. The beneficiary gave preparation instructions to the attorney drawing the Will
  6. The beneficiary secured the witnesses to the Will
  7. The beneficiary kept the Will in his/her possession after execution

The attorneys at Bach, Jacobs & Byrne, P.A. are trained Trust and estate litigators and elder law attorneys. If you think the Will or Trust of a loved one has been impacted by undue influence, call us today at (941) 906-1231 to set up an appointment to discuss your case.

January 18, 2019
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Why does probate take so long?

By Estate Planning, Probate

In Florida, the formal probate process, when not drawn out by disputed claims or other complications, generally takes at least four months. Though this may seem long, our system is more concise and takes less time than many other states.

In any probate process, creditors must be notified of the decedent’s death and given time to file claims on the probate estate. Florida law provides three months for the notification of any and all possible creditors – this is why the formal probate process in Florida can never take less than three months. Summary probate administrations for small estates are an exception.

The attorneys at Bach, Jacobs & Byrne, P.A. represent personal representatives in the administrations of probate estates, from start to finish, whether they are quick and simple or complicated and drawn-out. Contact us at 941-906-1231 to schedule an appointment.

January 14, 2019
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What is the CARES assessment?

By Asset Protection Planning, Long-Term Care, Medicaid Planning

In Florida, Comprehensive Assessment and Review for Long-Term Care Services (CARES) is the federally-mandated screening system for nursing home applicants. It is required by law for any person seeking Medicaid reimbursement for nursing home care or Medicaid waivers for community-based long-term care services. Furthermore, any private-pay applicant who is suspected of having an intellectual ability or mental illness must also take the test.

The CARES process is initiated once a person applies for the Medicaid Institutional Care Program. A registered nurse or other qualified individual performs the assessment, and then a physician or registered nurse reviews the application and determines the best course of action for the patient. You can read more about the process at the CARES website: http://elderaffairs.state.fl.us/doea/cares.php.

The lawyers at Bach, Jacobs & Byrne, P.A. are skilled Medicaid planning and elder law attorneys. To discuss protecting your assets in anticipation of long-term care and Medicaid application, or to learn more about the eligibility requirements of Medicaid, please contact us at (941) 906-1231 to schedule a consultation.

January 10, 2019
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What happens if a beneficiary predeceases the testator?

By Probate

As is the answer with many legal questions, the answer here is: it depends. When a person named as a beneficiary of a Will dies before the person who signed the Will, you should review the terms of the devise to see if alternate beneficiaries are named.

When alternate beneficiaries are not named, the gift is said to have “lapsed.” If the bequest lapses, the gift can instead be passed to other beneficiaries of the Will.

If one of your intended beneficiaries has passed away, it may be time to review your estate plan. Call Bach, Jacobs & Byrne, P.A. at 941-906-1231 to set up an appointment to create or review your existing estate plan documents.

January 8, 2019
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What is a “pour-over” Will?

By Asset Protection Planning, Estate Planning, Probate

A “pour-over” Will is usually created by individuals who hold most, if not all, of their assets in a Trust. The reason one might maintain such a document is to account for overlooked assets in the estate planning process – if one wishes for all his/her assets to be held by the Trust after death and inadvertently forgot to transfer some assets to the Trust, the pour-over Will directs those assets to be transferred to the Trust.

The assets in a pour-over Will still have to go through the probate process (unlike the assets already in the Trust). However, it is still wise to have a pour-over Will, as it will avoid intestate probate and provide clarity and direction with regard to your estate plan.

Do you need to make a pour-over Will? Do you need to review your existing estate plan to make sure it aligns with all your wishes? Contact Bach, Jacobs & Byrne, P.A. today at (941) 906-1231 to set up an appointment.

January 4, 2019
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How is a health care surrogate chosen for a minor?

By Estate Planning, Health

The relatively new Florida Statute §765.2038 aims to make the process of naming a health care surrogate for a minor easier. To do so, it provides a form for the legal custodians or legal guardians of the minor to designate a person to provide consent for his/her medical treatment and procedures. This action is taken so that, in the case where the legal custodians or guardians are unable or reasonably unavailable to make the health care decision, a trusted adult will be there to make the decision.

The designation of this health care surrogate does not expire unless revoked by the parties involved, and it can thus endure for the duration of the child’s minority. Even young families with minor children should have their estate plan documents in order, including a preneed guardian for minors declaration. Call Bach, Jacobs & Byrne, P.A. to schedule an appointment to set up your documents and provide you with peace of mind that your child will be protected.

 

 

December 31, 2018
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How is a Trust amended?

By Estate Planning

Amending a Trust is a relatively simple and straightforward process, so long as the original Trust contains a provision allowing for it to be amended. Should you find yourself wanting to amend a Trust, you need to first locate the Trust document.

The amendment will make note of which article in the original Trust allows for the Trust to be amended. Furthermore, the amendment will state the changes that you wish to make.

The amendment document should be executed with the same formalities of a Will or Trust that has testamentary bequests, which will include two witnesses and a notary. The attorneys at Bach, Jacobs & Byrne, P.A. can assist you with a review of your Trust and the preparation of any amendments to ensure they comply with Florida law.

December 27, 2018
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What is “electing against the will”, or “taking an elective share”?

By Estate Planning, Probate

“Electing against the will” refers to the right of a spouse to take a certain share of their deceased spouse’s inheritance. It can be utilized if the elective share is greater in the long run than the stated benefits of the spouse’s will.

The right to an elective share has its origins in England, where common law mandated that a certain portion of the decedent’s estate be reserved for the spouse, so as to prevent that spouse from becoming the burden of the community. In many American states today, the elective share ranges from 1/3 to 1/2 of the decedent’s estate. In Florida, it is 30% of the elective estate, as defined in the Florida Probate Code.

December 24, 2018
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What happens if the personal representative nominated by a decedent is found to be unqualified for the role?

By Estate Planning, Probate

The Florida Probate Code lists the order of preference for the selection of personal representatives in both estates where the deceased left a Will and where the decedent died without a Will. In an estate with a Will (a “testate” estate), if the individuals nominated under the Will are not eligible, then the “person selected by a majority in interest of the persons entitled to the estate” takes precedence. If this person, too, is unqualified, one of the Will’s devisees may be appointed as the next in preference.

The attorneys at Bach, Jacobs & Byrne, P.A. are experienced elder law and estate attorneys who can advise you in the process of naming your personal representative. Call us at (941) 906-1231 to schedule an appointment.

December 21, 2018
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