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Estate Planning

Who has priority in appointment as Personal Representative if a person dies without a Will?

By Estate Planning, Probate

If the decedent has died “intestate” (without a Will), first-priority goes to the surviving spouse in the appointment of a personal representative. If the spouse is not qualified to serve as personal representative, the person selected by a majority in interest of the persons entitled to the estate takes the second-highest priority. The final option is for the heir of nearest degree to the decedent to be appointed personal representative.

Making a Will and nominating a personal representative are fundamental parts of the estate planning process. The attorneys at Bach, Jacobs & Byrne, P.A. are highly-skilled and experienced elder law and trust & estate attorneys who can assist you with the drafting of your Will and other estate documents. Call us at (941) 906-1231 to schedule a consultation.

April 16, 2019
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Can a Will be contested while the testator is still living?

By Elder Law, Estate Planning, Probate

No, in Florida a Will cannot be challenged while the testator is still alive. The Florida Probate Code states clearly: “An action to contest the validity of all or part of a will or the revocation of all or part of a will may not be commenced before the death of the testator.” However, if one suspects undue influence or fraud in the creation of a Will, one can certainly gather facts and evidence in preparation for future litigation if and when the time comes.

After a person’s death, the personal representative serves a Notice of Administration on the estate’s beneficiaries. For 90 days after this notice is served, beneficiaries can contest the Will.

A Will can be challenged for, among other reasons, errors in execution, fraud, lack of testamentary capacity, or presence of undue influence. The attorneys at Bach, Jacobs & Byrne, P.A. are experienced probate litigators and estate attorneys who can advise you about your case. Call us at (941) 906-1231 to set up an appointment.

April 12, 2019
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If I move to another state, do I need to create new estate documents?

By Elder Law, Estate Planning, Probate

While it may not always be necessary to create entirely new estate documents when moving between states, it is always a good idea to review your estate documents with an attorney of the state in which you will begin living. This is because each state has a unique set of probate laws that governs the distribution of state residents’ assets.

When reviewing your estate plan documents, you might find that you have not moved all of your assets with you to the new state. If you die with real property left in another estate titled in your individual name, an ancillary probate may be necessary. This means that two probates may have to occur: one in the state in which you were living when you died, and one in the state in which you used to live where your property still remains.

To avoid the costs and delays of having multiple probate proceedings, you should at least review your estate documents with the experienced and dedicated elder law and estate attorneys of Bach, Jacobs & Byrne, P.A., as we can help you determine if they are valid in Florida and review the titling of all of your assets. Call us at (941) 906-1231 to schedule a consultation.

April 4, 2019
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Do I need more than a Will for my estate planning?

By Asset Protection Planning, Estate Planning

While obtaining a Last Will and Testament may be the impetus for starting the estate planning process, there are several other testamentary documents which can make end-of-life decision-making significantly less confusing and stressful for you and your loved ones. For example, other documents that are sometimes created and/or updated during estate planning include a living Will or advanced directive, a power of attorney, and a living Trust.

For help creating or updating any of these documents, the attorneys at Bach, Jacobs & Byrne, P.A. are at your service. Call now at (941) 906-1231.

March 29, 2019
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How will remarriage affect my estate planning?

By Asset Protection Planning, Estate Planning

Remarriage may add complexity to the estate planning process, especially when there are children from a previous marriage. All testamentary and end-of-life planning documents should be reviewed after a subsequent marriage.

In the event where the decedent had a Will that was not updated after remarriage, the spouse from the remarriage is considered a “pretermitted spouse,” one unintentionally left out of the testator’s Will. In this case, the spouse will be entitled to a portion of the probate estate in the absence of a prenuptial agreement to the contrary. Alternatively, the spouse also has the option to opt for the elective share: 30% of the potentially larger “elective estate.” Choosing between these two options is often simply a matter of which share has greater value.

Updating the testamentary bequests to the surviving spouse may avoid the issues involved with having to make these elections after death. In addition to the Will, the spouses must consider any changes they wish to make to their health care directives, medical release forms, real estate deeds, and more.

For help revising or drafting your estate planning documents, call the attorneys at Bach, Jacobs & Byrne, P.A. at (941) 906-1231 today.

March 21, 2019
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What is “decanting” of a Trust?

By Asset Protection Planning, Estate Planning

“Decanting” refers to transferring the assets from an irrevocable Trust into another Trust. Florida has a “decanting statute” that describes the requirements of legal decanting under the Florida Trust Code.

There are multiple motivations a trustee might have for decanting. For example:

-To fix a drafting mistake

-To correct certain Trust provisions to conform to new laws or circumstances

-To combine the Trust with another Trust

-To change trustee powers

-To add or remove a trustee

However, there may be other appropriate methods of modifying a Trust applicable to your situation, depending on the circumstances. If you would like to review an existing Trust and discuss your options for modifying the Trust, including the possibility of decanting, or if you would like to create a new Trust, please call the attorneys at Bach, Jacobs & Byrne, P.A. at (941) 906-1231 to set up a consultation.

March 1, 2019
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What are the benefits of using a corporate trustee?

By Asset Protection Planning, Estate Planning, Probate

The decision of who to name as trustee of your Trust is an important one. An option available to you when making this decision is to designate a corporate trustee, a company that will manage the assets in your trust in place of an individual trustee. Some of the advantages of choosing a corporate trustee include:

-Corporate trustees typically have extensive experience managing Trusts

-Corporate trustees are not as susceptible to emotional influence when managing Trusts as family members might be

-Using a corporate trustee removes the potential for conflict among family members who want to be named individual trustee

-Corporate trustees generally have considerable resources available to them when managing Trusts that individual trustees might lack

That said, there are, of course, several disadvantages to choosing a corporate trustee over an individual one. Examples of these are:

-Corporate trustees are often more expensive than individual trustees

-Corporate trustees might not be as familiar with your exact situation as an individual trustee might be

-Corporate trustees might not account for the emotional ramifications of asset management decisions to the extent that an individual trustee might be

Whether you name a corporate or an individual trustee, it is important to name a successor trustee in the event that the one you named is not able to serve. For help drafting a Trust, or to review an existing Trust, please call the elder law and estate attorneys of Bach, Jacobs & Byrne, P.A. at (941) 906-1231 to set up a consultation.

February 21, 2019
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What are the qualifications to serve as a personal representative?

By Estate Planning, Probate

In Florida, the qualifications to serve as personal representative of an estate, as set forth by the Florida Probate Code, are as follows:

-The personal representative has never been convicted of a felony

-The personal representative is mentally able to perform his/her duties

-The personal representative is physically able to perform his/her duties

-The personal representative is 18 years of age or older

Furthermore, the personal representative must be a Florida resident, unless he/she is a family member within a particular degree of relationship to the decedent.

Are you unsure whether you or the individual you would like to serve as personal representative of your estate is qualified and eligible for appointment under the law? Please contact the elder law and estate attorneys of Bach, Jacobs & Byrne, P.A. at (941) 906-1231 to schedule an appointment to discuss your case.

February 15, 2019
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Should I title a car in the name of a Trust?

By Estate Planning, Probate

Though there are exceptions to every rule, generally there are several reasons not to title a vehicle in the name of a Trust. For example:

-If your vehicle is involved in an accident and you get sued, your Trust becomes a party to the lawsuit – this can create significant complications

-Automobile insurers in Florida sometimes refuse to insure vehicles named in Trusts

-A Trust is generally not necessary to transfer a vehicle’s title after death –in some cases, the DMV Handbook allows the Florida Department of Motor Vehicles to accept the death certificate, the Will, the vehicle title, and a transfer fee as sufficient for transferring the vehicle’s title

For antique automobiles, mobile homes, and certain other situations, circumstances may be different. To review your estate plan documents or to get help preparing new ones, the attorneys of Bach, Jacobs & Byrne, P.A. can provide you particularized advice. Call (941) 906-1231 to schedule a consultation.

February 7, 2019
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Can I prevent my beneficiaries from knowing what other beneficiaries are receiving in my Will?

By Estate Planning, Probate

If a testator wants to distribute assets to multiple children in different amounts, he/she might want to prevent each beneficiary from knowing what the others are getting in order to mitigate strife and avoid hurt feelings. However, in Florida, each beneficiary of a Will has the right to acquire a copy of the Will. Even if a beneficiary was only left $1, the Florida Probate Code mandates that he/she still must have access to a copy of the Will in its entirety, after the death of the testator.

However, there are some alternative methods one might pursue to keep the asset distribution private from certain beneficiaries. First, one can leave assets using “Will substitutes,” such as payable-on-death accounts (“POD accounts”). With multiple POD accounts, one can distribute assets to multiple beneficiaries without each knowing the amount the others received. POD assets do not have to go through the probate process, either, so there will be no court record of the asset distribution.

Another option is to leave one’s assets in multiple Trusts, with only certain individuals named in each Trust as beneficiaries. This can be expensive, but it is another way of preventing beneficiaries from knowing the exact amounts each is receiving. As with Wills, the beneficiaries under each Trust are entitled to a copy of the Trust under the Florida Trust Code.

To prepare your estate plan documents with trustworthy and experienced trust and estate attorneys, or to review existing documents, please contact Bach, Jacobs & Byrne, P.A. at (941) 906-1231.

February 5, 2019
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