Skip to main content
Category

Estate Planning

“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
Love0

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
Love0

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
Love0

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
Love0

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
Love0

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
Love0

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
Love0

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
Love0

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
Love0

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
Love0