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Estate Planning

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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“It’s All Greek to Me”: Residue of an Estate

By Estate Planning, Probate

It would be cumbersome for a Will to specifically devise every single thing a person has ever bought or owned. So, the residue of the estate refers to all the assets not expressly left to a beneficiary.

The residuary provision in a Will or Trust typically deals with these assets. These remaining assets can be left to a certain person or people, or they can be designated to be distributed either per stirpes or per capita among a group. Whatever the case, it is vital to provide for the residue of the estate in any Will.

For help making your Will and other estate plan documents, call (941) 906-1231 to schedule an appointment with the attorneys at Bach, Jacobs & Byrne, P.A.

December 7, 2018
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How can I terminate a Durable Power of Attorney?

By Estate Planning

One way to terminate a Durable Power of Attorney is by creating a new Durable Power of Attorney. This new document must include language revoking the old Durable Power of Attorney, and it may be filed with the county public records office for added security.

Another option available to those seeking to terminate a Durable Power of Attorney is to create a separate document revoking the authorities of the agent or attorney-in-fact and to sign it. In addition to this, the agent or attorney-in-fact must be notified that they no longer retain the powers of the old document.

Do you need help terminating a Durable Power of Attorney or making a new one? Call Bach, Jacobs & Byrne, P.A. today at (941) 906-1231 to schedule an appointment with our experienced and highly-rated attorneys.

December 3, 2018
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What is an “in terrorem” clause in a Will or Trust?

By Estate Planning, Probate

Literally meaning “in fear”, an “in terrorem” clause acts as a sort of threat: if anyone challenges the legality of the Will or of any part of the Will, he/she will be disinherited. Though there are many potential reasons why a client would include such a clause (also referred to as a “no contest” clause), one common one is to promote family harmony and mitigate potential fighting resulting from a legal battle following the death of the testator.

However, Florida law does not allow for the enforcement of in terrorem or “penalty clauses”, as explicitly stated in Florida Statute §732.517. If you need representation in a Will challenge or in defending testamentary documents, the attorneys at Bach, Jacobs & Byrne, P.A. are here to help. Call now at (941) 906-1231 to set up an appointment to discuss your case.

November 29, 2018
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“It’s All Greek to Me”: Homestead

By Asset Protection Planning, Estate Planning, Real Estate

“Homestead” can be found in several different contexts in Florida law, but it always retains its fundamental application to an individual’s home. When used to refer to real estate, one might hear of the “homestead exemption” – this is a tax exemption of up to $50,000 on land as valued by the county property appraiser. In the Florida Constitution, a special exemption for homestead property is also provided, one that lists the homestead as a protected asset with regard to creditors. This law ensures that, if a creditor successfully brings a claim against you in court, the judgment cannot attach to your homestead, if the debt is not otherwise secured by the real estate, as with a mortgage. There are also exceptions for unpaid tax foreclosures and mechanics liens.

Finally, estate attorneys use the word in the context defined by Article X, Section 4(c) of the Florida Constitution. It is stated: “The homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner’s spouse if there be no minor child.” The process of dealing with a homestead after the death of its owner thus becomes quite different from the process of dealing with the decedent’s other assets.

Call Bach, Jacobs & Byrne, P.A. at (941) 906-1231 if you have questions about how you can plan your estate with special consideration for your homestead.

November 27, 2018
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What happens to the Durable Power of Attorney when someone dies?

By Asset Protection Planning, Estate Planning, Probate

A Power of Attorney is described as “durable” because it continues to be effective until and after the point at which a given client becomes incapacitated. However, the Durable Power of Attorney is not effective after that client (known as “the principal”) has died.

According to Florida Statute §709.1209, a Durable Power of Attorney is terminated in the following cases:

-The principal dies

-The principal revokes the Power of Attorney

-The Power of Attorney states that it terminates at a certain point

-The purpose of the Power of Attorney is accomplished

Even if a Durable Power of Attorney document states that it shall continue after the principal has died, the Power of Attorney will be terminated regardless. Only the personal representative of the estate has the authority to administer the assets of the deceased in the probate process.

If you have questions regarding the probate process and the estate of your loved one, please call the attorneys at Bach, Jacobs & Byrne, P.A. at (941) 906-1231.

November 23, 2018
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My Will was drawn up in another state. Is it still valid in Florida?

By Estate Planning, Probate

If your Will was valid in the state where it was written, it should be valid in Florida, with some exceptions. However, property laws do vary from state to state. For instance, one significant distinction between states when it comes to property law is whether they are considered “common law” states or “community property” states. In the former, the property of each spouse belongs to each individually – in the latter, the property is shared.

Another important thing to consider: not every state accepts all types of Wills as valid. For instance, Florida does not recognize either “nuncupative” or “holographic” Wills. Nuncupative Wills are spoken to two witnesses and then written down by those witnesses; holographic Wills are written in the handwriting of the deceased without witnesses.

If you have recently moved to Florida and want to make sure your Will is valid in Florida, the lawyers at Bach, Jacobs & Byrne, P.A. are happy to help. Give us a call at 941-906-1231.

November 15, 2018
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