Skip to main content
All Posts By

Bach, Jacobs & Byrne, P.A.

Pros and Cons of Naming a Trust as Your IRA’s Primary Beneficiary

By Estate Planning, Tax Law

The reasons that a person might name a Trust as the beneficiary of his/her Individual Retirement Accounts (IRA) assets are many, but it is sometimes done in cases where the grantor has a minor child or spendthrift child. The Trust can keep the assets secure until the grantor’s child is prepared to handle the money as a beneficiary. Other pros of naming the trust as IRA beneficiary are that doing so can avoid the need for guardianship of the assets, if applicable.

Some of the disadvantages of naming a Trust as IRA beneficiary center around the immense tax consequences which can result from improper designation and if the Trust is not drafted in such a way that it avoids adverse tax treatment. For instance, to preserve tax deferral options, the Trust should qualify for “look through treatment” as a “conduit Trust,” wherein the life expectancy of the oldest Trust beneficiary is used for distribution purposes. In this manner, the tax benefits of IRA assets can be drawn out for as long as possible. If the right steps are not taken, however, significant tax losses can result.

It is important to have a thorough and well-crafted estate plan, but it is also important to have a well-thought-out backup plan for your estate, especially if one wants a different distribution of assets based on whether or not their spouse survives them and to avoid the negative tax consequences of having IRA proceeds distributed to an improperly drafted Trust. The elder law and trust & estate attorneys of Bach, Jacobs & Byrne, P.A. can assist you with the creation, revision, and review of your Trust(s) and estate plan documents and advise you about obtaining more favorable tax treatment of “qualified plan” accounts, such as 401(K)s and IRAs. Call us at (941) 906-1231 to set up an appointment.

 

July 15, 2019
Love0

What is a pass-through entity?

By Estate Planning, Tax Law

A pass-through entity is a business the profits of which “pass through” to the business owner and are federally taxed at his/her individual rate. Pass-through entities can be both S corporations and limited liability companies. Electing pass-through tax treatment may avoid the double-taxation which might result otherwise, depending on one’s particular situation.

If you are interested in discussing business and estate planning, including electing to have your business designated as a pass-through entity, or if you would like to review your portfolio of assets to determine the best tax plan, attorney Fred Jacobs is a Florida Board Certified Tax Law attorney who can advise you with your case. Call (941) 906-1231 to set up a consultation.

July 11, 2019
Love0

What happens to my assets in foreign countries when I die?

By Elder Law, Estate Planning, Probate

The probate procedures in every country are unique, and different inheritance laws can clash. Usually, when an individual dies leaving assets in multiple countries, it is necessary to obtain a Grant of Probate or similar document in each of the countries where assets remain. A probate attorney from the foreign country is often consulted in tandem with a domestic probate attorney, too – this can help streamline the probate process and ensure that the probates in each country do not undermine each other.

To plan for an estate that will likely have foreign assets, a foreign codicil to a domestic Will may be drafted, as well. This is a document which acts as a supplement to an original Will which accounts for the immovable assets (i.e. real property) remaining in a foreign country. Or, one may look into drafting a formal Will in the foreign country, being careful to specify which assets the new Will is addressing and to reference the original domestic Will. Whether one uses a foreign codicil or drafts a separate foreign Will, it is important to acknowledge the foreign assets so as to avoid leaving them subject to intestacy rules.

For advice and guidance in creating your Will(s) and planning for your estate, especially if you own foreign assets, contact the highly-trained and dedicated attorneys of Bach, Jacobs & Byrne, P.A. Call us at (941) 906-1231 to set up a consultation.

July 9, 2019
Love0

What is summary administration in Florida?

By Estate Planning, Probate

Summary administration is a form of probate which is generally less time-intensive and less expensive than a full probate. Pursuant to the Florida Probate Code, the following conditions must be met for an estate to qualify for summary administration:

  • The gross value of the probate estate does not exceed $75,000, or
  • The decedent has been dead less than two years

If the Will does not include a direct instruction to conduct a formal probate, a petition with the court may be filed requesting summary administration, if either of the two factors above apply to the situation. This petition can be filed by any beneficiary of the Will or any individual nominated to serve as personal representative in the Will, and it must be signed or joined in by the surviving spouse (if any). If the court accepts the petition, it may order the assets to be immediately distributed to the designated beneficiaries, presuming all creditors have been paid or will be paid.

For guidance through the probate process and for assistance drafting a petition for summary administration, contact the elder law and trust & estate attorneys of Bach, Jacobs & Byrne, P.A. at (941) 906-1231.

July 5, 2019
Love0

Does Florida honor foreign Wills?

By Elder Law, Estate Planning, Probate

Yes, but with conditions. The Florida Probate Code states: “Any Will, other than a holographic or nuncupative Will, executed by a nonresident of Florida, either before or after this law takes effect, is valid as a Will in this state if valid under the laws of the state or country where the Will was executed.”

A holographic Will is one handwritten by the testator and not witnessed, whereas a nuncupative Will is one relayed orally by the testator to another person but never put in writing. Neither type of Will is valid in Florida, even if the state where it was executed permits such documents. Note that a handwritten Will that is witnessed is still valid under Florida law. Other than these exceptions, Florida generally recognizes any Will which was valid in the jurisdiction where it was created.

Even if an out-of-state Will is legally valid under Florida law, it may benefit the testator to update it so that it will reflect Florida law, which has many advantages for estates and trusts. To check whether your Will is valid in Florida probate court, or to revise and update your Will to reflect current Florida law, the elder law and estate attorneys of Bach, Jacobs & Byrne, P.A. are here to help. Call us at (941) 906-1231 to set up an appointment.

July 1, 2019
Love0

“It’s All Greek to Me”: Escrow

By Land Conservation Easements, Real Estate

A distant cousin of the crow? Not exactly. “Escrow” is a term that can be found in many different contexts, but it typically refers to agreements where an impartial third party retains control of assets throughout the duration of a transaction.

            For instance, in real estate, the money one puts down to purchase a house is placed “in escrow” until the final contract is signed by both buyer and seller. While the money is in escrow, neither the buyer nor the seller has access to it – rather, the impartial third party holds on to the funds until the transaction is completed or cancelled.

If you need guidance through the real estate process, attorneys Fred Jacobs and Sean Byrne of Bach, Jacobs & Byrne, P.A. are real estate attorneys and escrow/title agents who can help you with a closing on the purchase or sale of real estate. Call today at (941) 906-1231 to set up a consultation.

June 25, 2019
Love0

What is Adult Protective Services in Florida?

By Elder Law, Guardianship, Health

Adult Protective Services is a program of the Florida Department of Children and Families. Their mission is to protect vulnerable adults from abuse, neglect, exploitation, and self-neglect, as well as to enable adults with disabilities to remain comfortable in their communities.

A vulnerable adult, as defined by Florida Statute §415.102, is “a person 18 years of age or older whose ability to perform the normal activities of daily living or to provide for his or her own care or protection is impaired due to a mental, emotional, sensory, long-term physical, or developmental disability or dysfunction, or brain damage, or the infirmities of aging.” If you suspect that a vulnerable adult you know is the victim of abuse, neglect, exploitation, or self-neglect, do not hesitate to call the Florida Abuse Hotline, 1-800-962-2873. The suspected abuse can also be reported online at https://reportabuse.dcf.state.fl.us/.

For more information, visit the Adult Protective Services website, http://www.myflfamilies.com/service-programs/adult-protective-services. If you believe that a Florida senior may be the victim of financial exploitation, contact the attorneys at Bach, Jacobs & Byrne, P.A. to discuss your options and legal remedies to end the abuse. Call (941) 906-1231 to schedule an appointment.

June 21, 2019
Love0

What is summary ancillary administration?

By Probate

Summary ancillary administration is a type of ancillary probate in Florida (as a reminder, ancillary probates are generally necessary when a nonresident of Florida dies leaving real property in Florida). As defined in the Florida Probate Code, to qualify for this form of ancillary probate, the following criteria must be met:

  • The decedent had a Will
  • The decedent was not a resident of Florida
  • The decedent died less than two years ago
  • The decedent’s assets have a gross value of no more than $50,000
  • The personal representative was appointed by an out-of-state court
  • The pleadings from the foreign state probate court are available to be filed in a Florida court

In a summary ancillary administration, it is not necessary for a Florida personal representative to be appointed. However, the personal representative from out of state may file the transcript of the original probate proceedings with the Florida circuit court of the county where the decedent’s property remains, and he/she may also publish a notice of administration to all creditors and interested parties of the decedent’s Florida assets.

If you are a personal representative in need of probate guidance, the highly-skilled and experienced attorneys of Bach, Jacobs & Byrne, P.A. are here to assist you. Call us at (941) 906-1231 to set up an appointment.

June 17, 2019
Love0

What questions should I ask if I think my loved one is the victim of elder abuse?

By Elder Law, Guardianship, Health

Despite how common elder abuse is in Florida, it’s not always easy to detect when a loved one is a victim of abuse, exploitation, neglect, or self-neglect. While there are many questions one can ask to determine whether a loved one is being abused, below are some recommended by the Stanford School of Medicine:

1) Do you feel safe where you live?

2) Who prepares your food?

3) Does someone help you with your medication?

4) Who takes care of your checkbook?

Of course, one can also ask more directly about the suspected abuse:

5) Does anyone ever hurt you?

6) Does anyone ever take things from you without asking?

7) Does anyone ever make you do things you don’t want to do?

8)) Have you signed anything strange lately?

9) Are you afraid of anyone at home?

10) Are you alone a lot?

            If your loved one’s answers convince you that there is reason to believe they are the victim of elder abuse, call the Florida Abuse Hotline, 1-800-962-2873, as soon as you can. You can also report the suspected abuse online at https://reportabuse.dcf.state.fl.us/.

To discuss the different legal remedies available to you, including guardianship, call Sean M. Byrne, Esq. of Bach, Jacobs & Byrne, P.A. at (941) 906-1231.

 

June 13, 2019
Love0