Skip to main content
Category

Estate Planning

Disputing a Deathbed Marriage in Florida

By Asset Protection Planning, Elder Law, Estate Planning, Probate

Florida has laws that protect high net worth elderly individuals from exploitation through “deathbed” marriages.  Deathbed marriages occur when an elderly, sometimes high net worth, individual enters into a marriage during the last days or even hours of their life.  These marriages are commonly used to exploit the elderly and to attempt to claim their assets.  Florida is attempting to protect true heirs from having their inheritance taken away by a new deathbed spouse through the “Spousal Rights Procured by Fraud, Duress, or Undue Influence” statutes.  These laws require that it be proved that the deathbed marriage was entered into voluntarily by both parties for the deathbed surviving spouse to claim rights to life insurance policies and other assets.  An interested party, such as a rightful heir, can also challenge a deathbed marriage within four years of the marriage.

If you know someone who was involved in a death bed marriage and want to know how it will affect your inheritance and the administration of your loved ones’ estate, contact Board Certified Elder Law Attorney Babette Bach, Esq. at (941) 906-1231.

January 19, 2016
Love0

Missing Will

By Elder Law, Estate Planning, Probate

After a person dies, the original copy of their will must be submitted to the court.  If the original will cannot be found, the Florida Probate court requires that the contents of the will must be proven by providing the court with either: 1) two disinterested witnesses who testify to the contents of the will, or 2) a copy of the will and one disinterested witness who testifies to the contents of the will.

In some cases, courts have accepted copies of wills from the decedent’s attorney but each situation involving a lost will should be examined individually to determine the best course of action.

If you have questions about a lost will in Florida or your options with regard to probate and trust administration, contact one of our experienced probate and estate planning attorneys at (941) 906-1231.

January 15, 2016
Love0

What is a “Self-Proving” Will?

By Elder Law, Estate Planning, Probate

If you have a will that will be subject to the probate process, the executor of your will must prove that the will is valid to the probate court.  Unless the will is “self proved” the witnesses to the will have to appear and swear an oath as to its validity.  This process can be simplified in Florida through creating a self-proving will by attaching a statutory acknowledgement form which is notarized and affirms the validity of the will.  This document is signed by the witness and the notary at the time the will is executed, which helps avoid the requirement that the witnesses physically appear in court later to affirm that the will is valid so it can be admitted to probate.  If you are interested in creating a self-proving will to speed up the probate process or want to learn how you can avoid probate, contact one of our experience estate planning attorneys at (941) 906-1231.

January 12, 2016
Love0

Estate Planning with Vacation Homes

By Estate Planning, Probate

When putting together your estate plan, consider how laws in different states or countries will apply as you pass your vacation home property to your beneficiaries.  If you own real property in a state other than the state you live in at the time of your death, ancillary probate may be required to distribute this asset.  Ancillary probate is a secondary probate proceeding which is initiated in addition to the regular probate proceeding which distributes your assets in the state in which you reside.  Probate can be lengthy and expensive but it can also be avoided through careful estate planning.  With help from an experienced attorney, you can pass your vacation homes onto your beneficiaries without having the property go through ancillary probate.  To speak with an experienced estate planning attorney about probate avoidance today, contact our office at (941) 906-1231.

January 8, 2016
Love0

Estate Planning with a Non-Citizen Spouse

By Estate Planning, Probate, Tax Law

Careful estate planning is essential if your spouse is a non-citizen as deductions or tax exemptions can be difficult for them to claim.  One way to help a non-citizen spouse claim marital deductions for estate taxes is to set up a Qualifying Domestic Trust (QDOT).  After their spouse dies, the non-citizen will receive benefits from the QDOT trust and they may leave any remaining assets to their beneficiaries.  The benefits the spouse would receive from the QDOT trust would be subject to income taxes but not estate taxes.

To discuss estate planning for you and your non-citizen spouse, contact our office at (941) 906-1231 to speak with an experienced estate planning attorney who will help you distribute your assets as you desire while minimizing tax burdens as much as possible.

January 5, 2016
Love0

What is ancillary probate?

By Elder Law, Estate Planning, Probate

Ancillary probate is required when a decedent was the sole owner of property in a different state from where they lived at the time of death.  If the decedent had probate assets in their home state at the time of their death, the real estate law requires that two probate proceedings occur in this case – one to distribute the decedent’s assets which originates in the state in which they lived and a separate proceeding to distribute the property originating in the state in which their property is located.

If an estate you are handling involves real property in Florida that may require ancillary probate, contact one of our attorneys experienced in handling ancillary probate at (941) 906-1231.  Additionally, if you are looking to avoid ancillary probate our attorneys can help you create estate planning documents such as revocable living trusts or remainder deeds so ancillary probate will not be necessary.

December 29, 2015
Love0

What is a Personal Representative?

By Elder Law, Estate Planning, Probate

In Florida, a personal representative is appointed to administer a person’s estate after their death.  Many other states call this agent an “executor.”  The personal representative is responsible for gathering the decedent’s assets, publishing a Notice to Creditors, searching for creditors, paying the appropriate taxes associated with the estate, and distributing the assets of the estate to beneficiaries.  A personal representative needs an attorney to help them through the probate process as many legal issues associated with estate administration commonly arise.  It is actually required by the Florida Probate Rules that the PR have legal representation during the probate proceeding except in very limited circumstances.

If you have been named personal representative for an estate and are looking for legal assistance, contact one of our attorneys who are experienced in handling probate proceedings and ancillary probate at (941) 906-1231.

December 25, 2015
Love0

What is a Durable Power of Attorney?

By Elder Law, Estate Planning

A Durable Power of Attorney, unlike a limited power of attorney or non-durable power of attorney, may remain in effect after incapacitation.  This can be an important document to have in place if you wish for your designated power of attorney to continue handling your financial or legal matters even if you are ever deemed incapacitated later in life.  The powers granted to your durable power of attorney can be laid out by you and can be limited or more general.

In Florida, a Durable Power of Attorney can be a way to avoid guardianship during incapacitation.  If proper estate planning and health care documents are put into place before incapacitation, courts may not need to appoint a guardian because the person you choose as your power of attorney (aka your attorney-in-fact) can act on your behalf in financial and sometimes medical matters.  This is an example of what Florida law considers a possible “lesser restrictive alternative” to guardianship.

If you are looking to set up or review your estate planning documents, contact one of our experienced attorneys at (941) 906-1231.

December 22, 2015
Love0

Clauses to Include in a Will or Living Trust

By Asset Protection Planning, Elder Law, Estate Planning, Probate

While everyone needs individualized legal advice on what language their estate planning documents should contain, the following are some of the most common and important clauses which should be discussed with the lawyer preparing your will or living trust.

  • Revocation: Previously written wills or trusts should be revoked to avoid the court intervening later to decide which parts of certain documents should be followed.
  • Disaster Clause: This clause helps plan what will happen to your assets if both you and your spouse or main beneficiary die at the same time.
  • Appointment of personal representative: While doing estate planning you will need to name someone as your Personal Representative who will be in charge of distributing the assets in your estate.
  • Guardianship of children: If you have minor children, it is very important that you name someone as their guardian in the event that you or you and your spouse die.
  • Spendthrift Provision: This clause prevents the beneficiary of your assets from transferring their rights to those assets. A spendthrift provision is often used to protect assets from creditors.
  • Total failure: Total failure would occur if all heirs of your estate died before inheriting your assets. This is an extremely rare situation but, without a total failure clause, your estate would go to the government in this circumstance.  A total failure clause allows you to instead designate an organization of your choice for the estate to be given to.

If you have questions about what should be in your estate planning documents to ensure all of your wishes are met and your assets are distributed exactly as you desire, contact our office at (941) 906-1231 to speak with an experienced estate planning attorney.

December 11, 2015
Love0

How can a trustee be removed?

By Asset Protection Planning, Elder Law, Estate Planning

In Florida, trusts can contain provisions which describe situations in which a trustee should be removed and procedures for doing so.  An example of a procedure that could be laid out to remove a trustee would be conducting a majority vote among beneficiaries.  The courts may also choose to remove a trustee if the trustee has 1) committed a serious breach of trust, 2) co-trustees are uncooperative to an extent that interferes with the trust’s administration, or 3) all beneficiaries ask for the trustee’s removal.

If you have questions related to establishing a trust to ensure the trustee you designate can be removed in certain situations or believe a trustee should be removed in a certain case, contact Bach & Jacobs, P.A. at (941) 906-1231.  We represent trustees and trust beneficiaries and can advise your regarding your rights and options.

December 8, 2015
Love0