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Estate Planning

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
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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
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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
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Can a Durable Power of Attorney help avoid guardianship once I become incapacitated?

By Estate Planning, Guardianship

Having certain estate and end-of-life plan documents in place may be considered ‘lesser restrictive alternatives’ to guardianship if you become incapacitated. One possibility is the Durable Power of Attorney: if created by an individual before incapacitation, a Durable Power of Attorney appoints an agent or attorney-in-fact to make financial decisions and possibly even medical directives on behalf of the client (known as the “principal), even when the principal becomes incapacitated. If the individual does not have a power of attorney and a Florida circuit court adjudicates them incapacitated, then the court appoints a guardian, if there are no lesser restrictive alternatives. This guardian may be in charge of making financial and/or medical decisions on behalf of the ward until the point when the ward regains capacity. It is the responsibility of the guardian to make decisions guided in highest priority by the best interests of the ward in compliance with the Florida Guardianship Law.

For help drafting a Durable Power of Attorney or to discuss any questions you have about guardianship, please feel free to call Bach, Jacobs & Byrne, P.A. at (941) 906-1231.

May 20, 2019
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When does a revocable trust become irrevocable?

By Elder Law, Estate Planning

The irrevocable trust is a trust that, once signed by the settlor or trust creator, is intended to be permanent.

However, just because the trust cannot be revoked following its signature does not mean the trust cannot ever be changed in response to new circumstances. The Florida Trust Code provides for modification of irrevocable trusts in certain situations if all requirements are met.

Though most estate planning trusts are devised as revocable trusts, these trusts become irrevocable upon the death of the trustee. These revocable trusts may be formally amended by the settlor while the settlor is living and has the capacity to make the changes.

 

 

May 16, 2019
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“It’s All Greek to Me”: Fiduciary

By Estate Planning, Probate

 In this series of blog posts, we define esoteric legal terms and explain how they are used in law.

The word “fiduciary” has many meanings in law, but the Merriam-Webster definition ties together all uses of the word nicely: “of, relating to, or involving a confidence or trust.” Whether the term is applied to a will, a trust, or a power of attorney, it is the duty of the fiduciary to act in the best interest of his/her client, their estate, and their beneficiaries.

When it comes to probate, the fiduciary acts as the “Personal Representative” (a.k.a., “executor”) of the Will – the person in charge of distributing the assets and seeing the probate administration to its completion. The Personal Representative can be compensated for his/her services, known as “costs of administration.”

A trustee of a trust is the person appointed to hold and invest the assets of the trust. The fiduciary agent named under a power of attorney, like the trustee, has powers and responsibilities that go into effect as soon as the documents are signed.

May 14, 2019
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What constitutes a breach of fiduciary duty?

By Estate Planning, Probate

A fiduciary is an individual who has a duty to act in the best interests of another. There are many kinds of fiduciary relationships, but some of the most common are guardian-ward relationships, trustee-beneficiary relationships, and agent-principal relationships.

There is no one method by which a fiduciary duty may arise: certainly, a fiduciary relationship may be established explicitly, by contract, for example. But a fiduciary relationship can also be legally binding if it is established implicitly, without formal documents. Court cases surrounding breaches of fiduciary duties often hinge on the question of whether there existed a fiduciary relationship to have been breached in the first place.

With a Trust, the trustee acts as the fiduciary to the beneficiaries of the Trust, whereas in a probate, the personal representative of the estate acts as the fiduciary to the heirs of the estate. If you are Personal Representative or Trustee and are being accused of breaching your fiduciary duties, contact the trust and estate litigators of Bach, Jacobs & Byrne, P.A. to discuss your defense. Call us at (941) 906-1231 to set up a consultation.

May 2, 2019
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How can I remove a trustee from a Florida Trust?

By Estate Planning

There are various grounds for removing someone as trustee of a Florida Trust. The Florida Trust Code recognizes the following as legally-valid reasons to remove a trustee:

-The trustee has committed a serious breach of the Trust

-Lack of cooperation among co-trustees that substantially impairs the administration of the Trust

-The trustee is unfit, unwilling, or persistently fails to administer the Trust effectively

-There has been a substantial change of circumstances, or removal is requested by all of the qualified beneficiaries

Sometimes, there are Trust provisions which allow for the removal of a trustee by a majority vote of the beneficiaries. If this is not the case, in order to remove a trustee, it can be necessary to file a removal action and attend an evidentiary hearing where evidence of the trustee’s unlawful actions must be presented. Attorney Sean Byrne of Bach, Jacobs & Byrne, P.A. is a trust and estate litigator who can advise and represent you in trust litigation, including the removal of a trustee. Call (941) 906-1231 to set up a consultation.

April 22, 2019
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What is an “incontestability provision” in an insurance policy?

By Asset Protection Planning, Elder Law, Estate Planning, Medicaid Planning, Medicare

Florida Statute §627.455 states:

Every insurance contract shall provide that the policy shall be incontestable after it has been in force during the lifetime of the insured for a period of 2 years from its date of issue except for nonpayment of premiums and except, at the option of the insurer, as to provisions relative to benefits in event of disability and as to provisions which grant additional insurance specifically against death by accident or accidental means.

The incontestability provision is thus the clause included in Florida life insurance policies which limits the time during which the insurer can challenge the validity of the policy to 2 years. Whether the challenge to the policy is based on alleged application fraud or an inability to enforce the policy, all claims must be filed within the 2-year period – or else, the claim is barred.

This provision has its origins in the mid-19th century, when insurance companies began including incontestability provisions to combat the perception that insurance companies would refuse to honor their policies over minor mistakes in a person’s life insurance application. Florida required the inclusion of incontestability provisions by law in 1955.

There is a possible exception to incontestability provisions: imposter fraud. Imposter fraud refers to the impersonation of a life insurance application by someone else during the medical examination of the application process – this type of fraud can be exempt from the incontestability provision.

To review your end-of-life and estate plan documents with experienced and dedicated estate and elder law attorneys, schedule an appointment with Bach, Jacobs & Byrne, P.A. at (941) 906-1231 today.

 

April 18, 2019
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