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Estate Planning

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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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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Ancillary Probate When There is No Will

By Elder Law, Estate Planning, Probate, Real Estate

Question:     What happens to real estate in Florida if the owner is an out-of-state resident who dies without a will?

Answer:    When someone dies without a will or ‘intestate’, there is no will to file with the court.  However, the real estate in Florida may have to be dealt with in Florida’s probate courts through “ancillary administration” of the estate.  Ancillary administration is usually required when the Florida real property is titled solely in the name of the decedent. First, probate must be commenced in the out-of-state county where the decedent lived, called “domiciliary proceedings.”  To commence the ancillary administration in Florida, the petition for administration and the court order appointing a personal representative in the other state will need to be filed with the Florida court where the real estate is located.  These documents from the domiciliary proceedings must also be “authenticated,” meaning  it must have a court seal from the out of state court as well as language that the document is a certified or authenticated copy of the original.  The team at Bach & Jacobs handles ancillary estate administration in Florida for non-resident estates.  Contact the firm if you need assistance with ancillary administration.

October 24, 2013
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What is an ‘Authenticated Copy of a Foreign Will?’

By Elder Law, Estate Planning, Probate

Question:     How do I know if I have an authenticated copy of a foreign will?

Answer:    Florida law allows for ancillary administration for a resident of another state that dies leaving assets in Florida.  The law requires the admission of an authenticated copy of a non-resident’s will if the will devises or bequeaths real estate in Florida.  This means that the clerk of the Florida court where  the ancillary probate is to occur must be given a copy of the will that has a court seal from the out of state court where the will was filed.  You can obtain an authenticated copy by going to the clerk’s office in the county where the will was originally filed and requesting an authenticated copy.  A quick way to confirm whether the copy of the will is ‘authenticated’ is to feel for a raised seal on the clerk’s stamp and to look for language that the document is a certified or authenticated copy of the original.  If you are the personal representative for a non-Florida resident and need assistance with an ancillary administration in Florida, call Bach & Jacobs at (941) 906-1231 to speak to an attorney.

October 16, 2013
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Tax Incentives for Conserving Land

By Estate Planning, Land Conservation Easements, Tax Law

Question:     Can I reduce my taxes if I do not develop my land?

Answer:    Policy makers at the federal and state level have enacted tax incentives to encourage landowners to conserve environmentally sensitive land.  Property owners who have undeveloped, natural land and record a ‘conservation easement’ deed to restrict development and degradation of their real estate may qualify for federal income tax deductions or local property tax exemptions or both.  The conservation restrictions will have to be enforced in perpetuity by a land conservation non-profit or governmental entity.  Attorney Sean Byrne of Bach & Jacobs has represented parties in multimillion dollar conservation land transactions.

October 9, 2013
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Is Ancillary Administration Always Necessary for an Out-Of-State Resident Who Dies Owning Florida Real Estate?

By Elder Law, Estate Planning, Probate, Real Estate

Question:     Does Florida Real Estate Owned by an Out-of-State Resident Always Have to Go Through the Florida Probate Process?

Answer:    An “ancillary administration” of the estate is usually required when the property owned by the out-of-state resident is titled solely in the name of the deceased person.  This is the only way for title to be properly conveyed to the beneficiaries.  However, there may be instances where ancillary probate is unnecessary even though a resident of another state died owning Florida real estate assets.  For example, if the Florida real estate is titled jointly between the deceased person and another person or entity, the real estate would be transferred to the other person or entity without the need for ancillary administration.  Another example that would avoid ancillary probate is where the real estate is titled in the name of a trust, rather than in the name of the decedent.  If you are the personal representative for a non-Florida resident and want to know if an ancillary administration is required in Florida for the estate, call Bach & Jacobs to speak to an attorney.

October 2, 2013
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Liens Against Trust Beneficiaries for Child Support

By Elder Law, Estate Planning

Question:     My ex-spouse is a trust fund beneficiary, but has not paid me court-ordered child support in over 2 years.  Can I attach a lien on my ex’s trust income?

Answer:    Florida law allows a trust beneficiary’s child, spouse, or former spouse with a court judgment for support or maintenance to reach the beneficiary’s interest by “attaching” a claim for the present or future trust distributions in some cases.  However, there are instances where you would not be able to reach the trust income.  For example, if the distributions to your ex-spouse are not required but are simply within the discretion of the trustee, then you may not be able to attach your claim for child support to the ex-spouse’ s trust income.  If you need legal advice regarding claims against a trust or a trust beneficiary’s income, contact Bach & Jacobs for assistance.

September 26, 2013
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Retirement Provisions in the American Taxpayer Relief Act of 2012

By Asset Protection Planning, Estate Planning, Tax Law

 The American Taxpayer Relief Act of 2012 (ATRA), passed to avoid the fiscal cliff, includes two provisions that are important to many IRA owners and retirement plan participants. The first extends tax-free charitable contributions from IRAs through 2013, and the second eases the rules for 401(k), 403(b), and 457(b) in-plan Roth conversions.

 The Pension Protection Act of 2006 first allowed taxpayers over the age of age 70½ to exclude from gross income otherwise taxable distributions from their IRA (“qualified charitable distributions,” or QCDs), up to $100,000, that were paid directly to a qualified charity. The law was originally scheduled to conclude in 2007, but was extended through 2011. The law has just been extended yet again through 2013 by ATRA.

 If you need legal advice for estate planning, Asset Protection Planning, or Medicaid planning, please contact our office at (941) 906-1231 for an initial consultation.

September 23, 2013
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When an Out-of-State Resident Dies Owning Florida Real Estate

By Elder Law, Estate Planning, Probate, Real Estate

Question:     What happens when someone dies owning real estate or other assets in Florida, but is a resident of another state?

Answer:    If a deceased person was a resident of a state other than Florida, the estate will be administered in the county and state of residence.  However, even if the decedent’s estate is administered by the probate court of the state of residency, assets located in Florida, especially real estate, may have to be administered by Florida’s probate courts.  This is called “ancillary administration” and requires that the Florida court issue letters of administration to a personal representative qualified to act under Florida law.  If you are the personal representative for a non-Florida resident and need assistance with opening an ancillary administration in Florida for the estate, call Bach & Jacobs to speak to an attorney.

September 19, 2013
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Supreme Court DOMA Decision Affects Estate Planning for Same Sex Spouses

By Elder Law, Estate Planning, Tax Law

The Supreme Court of the United States’ ruling that a portion of the Defense of Marriage Act (“DOMA”) is unconstitutional may allow same sex spouses who were legally married under state law at the time they filed individual Federal income tax returns to amend past tax returns and receive a refund.  The DOMA ruling’s implications will also affect the gift and estate tax marital deduction, portability of a spouse’s estate and gift tax credit, retirement benefits, and the future tax filing status for same sex spouses.  Many tax experts believe that the Court’s ruling has retroactive effects.  This means that same sex spouses may be able to amend previous tax returns to claim refunds for prior tax years if the taxpayers can show that they would have paid less if the marriage had been recognized by the IRS.  Same sex couples can contact tax expert Fred Jacobs at Bach & Jacobs to review the effect that the Supreme Court’s decision may have on their federal taxes.

September 5, 2013
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