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Estate Planning

“It’s All Greek to Me”: Settlor vs. Grantor vs. Trustor

By Estate Planning

We turn to Florida Statute §736.0103 for the legal definition of “settlor”: “a person, including a testator, who creates or contributes property to a Trust.” Florida Statute §731.201 defines “grantor” as: “one who creates or adds to a Trust and includes ‘settlor’ or ‘trustor’ and a testator who creates or adds a Trust.”

Do the terms seem confusingly similar? If so, it is probably because “settlor,” “grantor,” and “trustor” all have the same basic meaning: the person who creates a Trust. Today, one might even come across the word “trustmaker,” which – you guessed it – also means the same thing.

            If you are a settlor, grantor, trustor, or trustmaker (or hope to be someday) and would like help preparing or reviewing your estate plan documents, please call the attorneys of Bach, Jacobs & Byrne, P.A. at (941) 906-1231.

January 24, 2019
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What is the “spendthrift provision” in a Trust?

By Estate Planning, Probate

Florida’s spendthrift provision protects Trustees and beneficiaries from creditors seeking to collect on a beneficiary’s debts and from the beneficiaries themselves, pledging their interest in the Trust as collateral. Essentially, the provision stipulates that no creditor can access the assets in a Trust designated to be distributed to certain beneficiaries, as long as the assets remain in the Trust. However, as soon as the beneficiaries receive their assets from the Trust, the creditors are allowed to seek repayment from them.

For more information about the spendthrift provision, you can look up Florida Statute §736.0502 at www.leg.state.fl.us/Statutes. To review an existing Will or Trust or for help creating one, please contact the attorneys at Bach, Jacobs & Byrne, P.A. at (941) 906-1231.

 

January 22, 2019
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What constitutes undue influence in a Will or Trust contest?

By Estate Planning, Probate

The Florida Supreme Court case which has set the standard for determining undue influence in Will disputes is the seminal case of In re: Estate of Carpenter, 253 So.2d 697 (Fla. 1971), which held that: “It is established in Florida that if a substantial beneficiary under a will occupies a confidential relationship with the testator and is active in procuring the contested will, the presumption of undue influence arises.”

In terms of proving that that a beneficiary was active in procuring the Will, the Carpenter court lists seven criteria which may be used in doing so:

  1. The beneficiary was present at the execution of the Will
  2. The beneficiary was present on occasions when the testator expressed a desire to make a Will
  3. The beneficiary recommended that an attorney draw the Will
  4. The beneficiary knew the contents of the Will prior to execution
  5. The beneficiary gave preparation instructions to the attorney drawing the Will
  6. The beneficiary secured the witnesses to the Will
  7. The beneficiary kept the Will in his/her possession after execution

The attorneys at Bach, Jacobs & Byrne, P.A. are trained Trust and estate litigators and elder law attorneys. If you think the Will or Trust of a loved one has been impacted by undue influence, call us today at (941) 906-1231 to set up an appointment to discuss your case.

January 18, 2019
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Why does probate take so long?

By Estate Planning, Probate

In Florida, the formal probate process, when not drawn out by disputed claims or other complications, generally takes at least four months. Though this may seem long, our system is more concise and takes less time than many other states.

In any probate process, creditors must be notified of the decedent’s death and given time to file claims on the probate estate. Florida law provides three months for the notification of any and all possible creditors – this is why the formal probate process in Florida can never take less than three months. Summary probate administrations for small estates are an exception.

The attorneys at Bach, Jacobs & Byrne, P.A. represent personal representatives in the administrations of probate estates, from start to finish, whether they are quick and simple or complicated and drawn-out. Contact us at 941-906-1231 to schedule an appointment.

January 14, 2019
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What is a “pour-over” Will?

By Asset Protection Planning, Estate Planning, Probate

A “pour-over” Will is usually created by individuals who hold most, if not all, of their assets in a Trust. The reason one might maintain such a document is to account for overlooked assets in the estate planning process – if one wishes for all his/her assets to be held by the Trust after death and inadvertently forgot to transfer some assets to the Trust, the pour-over Will directs those assets to be transferred to the Trust.

The assets in a pour-over Will still have to go through the probate process (unlike the assets already in the Trust). However, it is still wise to have a pour-over Will, as it will avoid intestate probate and provide clarity and direction with regard to your estate plan.

Do you need to make a pour-over Will? Do you need to review your existing estate plan to make sure it aligns with all your wishes? Contact Bach, Jacobs & Byrne, P.A. today at (941) 906-1231 to set up an appointment.

January 4, 2019
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How is a health care surrogate chosen for a minor?

By Estate Planning, Health

The relatively new Florida Statute §765.2038 aims to make the process of naming a health care surrogate for a minor easier. To do so, it provides a form for the legal custodians or legal guardians of the minor to designate a person to provide consent for his/her medical treatment and procedures. This action is taken so that, in the case where the legal custodians or guardians are unable or reasonably unavailable to make the health care decision, a trusted adult will be there to make the decision.

The designation of this health care surrogate does not expire unless revoked by the parties involved, and it can thus endure for the duration of the child’s minority. Even young families with minor children should have their estate plan documents in order, including a preneed guardian for minors declaration. Call Bach, Jacobs & Byrne, P.A. to schedule an appointment to set up your documents and provide you with peace of mind that your child will be protected.

 

 

December 31, 2018
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How is a Trust amended?

By Estate Planning

Amending a Trust is a relatively simple and straightforward process, so long as the original Trust contains a provision allowing for it to be amended. Should you find yourself wanting to amend a Trust, you need to first locate the Trust document.

The amendment will make note of which article in the original Trust allows for the Trust to be amended. Furthermore, the amendment will state the changes that you wish to make.

The amendment document should be executed with the same formalities of a Will or Trust that has testamentary bequests, which will include two witnesses and a notary. The attorneys at Bach, Jacobs & Byrne, P.A. can assist you with a review of your Trust and the preparation of any amendments to ensure they comply with Florida law.

December 27, 2018
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What is “electing against the will”, or “taking an elective share”?

By Estate Planning, Probate

“Electing against the will” refers to the right of a spouse to take a certain share of their deceased spouse’s inheritance. It can be utilized if the elective share is greater in the long run than the stated benefits of the spouse’s will.

The right to an elective share has its origins in England, where common law mandated that a certain portion of the decedent’s estate be reserved for the spouse, so as to prevent that spouse from becoming the burden of the community. In many American states today, the elective share ranges from 1/3 to 1/2 of the decedent’s estate. In Florida, it is 30% of the elective estate, as defined in the Florida Probate Code.

December 24, 2018
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What happens if the personal representative nominated by a decedent is found to be unqualified for the role?

By Estate Planning, Probate

The Florida Probate Code lists the order of preference for the selection of personal representatives in both estates where the deceased left a Will and where the decedent died without a Will. In an estate with a Will (a “testate” estate), if the individuals nominated under the Will are not eligible, then the “person selected by a majority in interest of the persons entitled to the estate” takes precedence. If this person, too, is unqualified, one of the Will’s devisees may be appointed as the next in preference.

The attorneys at Bach, Jacobs & Byrne, P.A. are experienced elder law and estate attorneys who can advise you in the process of naming your personal representative. Call us at (941) 906-1231 to schedule an appointment.

December 21, 2018
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How can I protect my pet when I die?

By Estate Planning, Probate

One can include specific instructions for the transfer of care for one’s pet in a Last Will and Testament or in a revocable living Trust. Specific amounts of money can be devised to beneficiaries entrusted with caring for one’s pet after death. While one cannot leave assets directly to their pet, one can leave assets to a human beneficiary with directions to exclusively use those assets in caring for the pet. It can be a good idea to name alternate pet caregivers in one’s Will, as well.

Because a Will only applies to the care for the pet following death, the revocable living Trust is an option for scenarios wherein a pet owner has become incapacitated or must move to a long-term care facility.

The attorneys at Bach, Jacobs & Byrne, P.A. are experienced and compassionate trust and estates attorneys who can help you prepare your estate plan documents or review your existing ones, with a special emphasis on the people (and critters) most important to you. Call us today at (941) 906-1231.

 

December 13, 2018
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