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Estate Planning

Is an Attorney Required for Probate Administration in Florida?

By Elder Law, Estate Planning, Probate

Question:  If I am the personal representative for an estate in Florida, am I required to have an attorney for the probate administration in the Florida circuit court?

Answer:    Florida law requires an attorney in a formal probate proceeding except in the rare case where the personal representative is the sole interested person. However, Florida probate procedures are complicated and most non-lawyers will have a challenging time trying to proceed without an attorney.   Just determining who fits the statutory definition of “interested person” requires an understanding of the Florida Probate Code and the Florida Rules of Probate, which apply to even the most basic estate administration.  If you have been named the personal representative in the will of someone recently deceased and you would like assistance with the administration of the estate, contact Bach & Jacobs to meet with one of our attorneys.

December 6, 2013
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Where Can I Research the Florida Probate Law?

By Elder Law, Estate Planning, Probate

Question:     Where can I find trusted, general information on the probate process in Florida?

Answer:    One obvious source of information on probate law topics in Florida is on the Bach & Jacobs, P.A. website where you can view frequently asked questions relating to probate and the administration of estates.  Another source for a general overview of basic probate concepts is the Probate in Florida Pamphlet, available for free viewing at the The Florida Bar website. If you would like advice or assistance specific to your probate matter, contact Bach & Jacobs at (941) 906-1231 to schedule an appointment with one of our attorneys.

December 3, 2013
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Home for the Holidays: Talking With Your Family About Your Estate Plan

By Estate Planning

Question:     How do I talk to my family about my estate plan?  We’ll all be together this year for the holidays and I thought now would be a good time.

Answer:    Talking to your family and beneficiaries may be one of the most important parts of managing your estate before you die.  Whether to let them know about the content of your will and the distribution plan for your assets is up to you.  Open communication may help allay anxieties and allow for an honest conversation.   If you are comfortable with full disclosure, some clients allow their children or close family members to read their will or even hand out copies for them to keep.   You may want to keep the extent of your estate private, but simply let them know that you’ve taken the steps to plan for this inevitability.  It is helpful to let your family know who your estate planning attorney is so they know where to find your documents.  We recommend you review your existing estate plan whenever there is a major change in your life, such as illness, death of a family member, major financial changes and disability of a family member.  But the conversation can be emotionally charged and it is understandable that some people because of family dynamics would prefer to avoid it during their lifetime.  The New York Times published an article earlier this year about how to broach the topic of estate plans with a parent, which can be found by clicking here.

November 29, 2013
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Can Lawyers Be Beneficiaries of a Client’s Estate in Florida?

By Elder Law, Estate Planning, Probate

Question:  I was appointed personal representative of an estate and I saw in the will that the lawyer who drafted it wrote himself in as a beneficiary of the estate.  That seems inappropriate.  Is that ethical?

Answer:    Unless the attorney is related to the deceased client, Florida law prohibits such a gift.  The Florida Legislature passed a law that became effective October 1, 2013 that voids a gift to a lawyer, or certain persons related to or affiliated with the lawyer if the lawyer prepared the instrument making the gift or solicited the gift.  An exception is made for the lawyer or recipient of the gift who is related to the client.  If you are the personal representative of an estate and would like assistance with the administration of the estate, contact Bach & Jacobs to have your estate planning documents reviewed by our attorneys.

November 26, 2013
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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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