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Estate Planning

What does “TBE” stand for in real estate?

By Asset Protection Planning, Estate Planning, Probate, Real Estate

“TBE” stands for “Tenancy by Entirety,” which is a special form of joint ownership between spouses wherein property is not held individually, but collectively by the married couple. Thus, following the death of one spouse, the assets held as TBE do not have to go through probate – instead, they all transfer by operation of law to the other spouse. Furthermore, creditors cannot access this property unless both spouses are liable.

However, there are certain caveats to holding TBE property. First and foremost, one must be legally married to be eligible for a TBE. It is also necessary to remember that assets held before marriage do not automatically transfer to TBE status – this property must be formally identified as TBE property. Finally, it is important to check bank signature cards for any bank accounts opened with a spouse: though Florida law presumes accounts opened at the same time by spouses to have TBE status, bank officers can sometimes register the accounts as “Joint Tenants with Right of Survivorship.”

The attorneys at Bach, Jacobs & Byrne, P.A. will review the titling of your and your spouse’s assets as part of their comprehensive estate planning. In addition, Fred Jacobs and Sean Byrne are authorized real estate title and closing agents and can assist clients with the purchase, sale, or reconveyance of real property. Call to schedule an appointment at (941) 906-1231.

September 6, 2018
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What is Florida’s “Prudent Investor Rule” regarding trust administration?

By Estate Planning

Florida has requirements on how a fiduciary is to manage and invest the assets of the Trust that the trustee administers.

Florida has adopted what is known as the “prudent investor rule,” which aims for a more balanced approach to the investment of assets in a Trust. Florida Statute §518.11 sets the terms as follows:

“The fiduciary has a duty to invest and manage investment assets as a prudent investor would considering the purposes, terms, distribution requirements, and other circumstances of the Trust. This standard requires the exercise of reasonable care and caution and is to be applied to investments not in isolation, but in the context of the investment portfolio as a whole and as a part of an overall investment strategy that should incorporate risk and return objectives reasonably suitable to the Trust, guardianship, or probate estate.”

The statute goes on to clarify that no specific investment can be designated as prudent or imprudent, and that the investments in the portfolio must be kept diverse by the fiduciary.

August 27, 2018
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Can an individual with dementia be found to have sufficient capacity to execute a Will?

By Estate Planning, Probate

Yes, it is possible that a person with dementia may be found to have testamentary capacity, depending on the circumstances surrounding the execution of the Will. Indeed, Florida law presumes that the testator of a Will had the capacity to execute the Will, and it is therefore the burden of any contestant of the Will to prove that the testator was not of sound mind when creating the Will.

Generally, the standard in Florida for testamentary capacity to make a Will or trust is not exactly the same as incapacity in the guardianship context. The case In re Bailey’s Estate defines “sound mind” as, “the ability of the testator `to mentally understand in a general way the nature and extent of the property to be disposed of, and the testator’s relation to those who would naturally claim a substantial benefit from the Will, as well as a general understanding of the practical effect of the Will as executed.” Because individuals suffering from dementia may have periods of lucidity (also known as a “lucid interval”), courts have found that such individuals can be possessing of sound mind at the time when they make their Wills. It is important to note that the only point at which the testator of a Will has to be of sound mind in order to validly execute a Will is the moment at which they create the Will.

Certainly, the validity of a Will made by a person with dementia can be challenged. If the court finds that the testator was diminished in capacity at the time of the Will’s execution, the Will can be invalidated. In addition to estate planning and administering probates and trusts, the attorneys at Bach, Jacobs & Byrne, P.A. are trusted estate litigators who represent clients in challenging (and defending) testamentary documents after the testator’s death.

July 30, 2018
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What is a Codicil, and How Does It Relate to Estate Planning?

By Estate Planning

A codicil is a document that supplements a Will that has already been created and is an estate planning tool that allows provisions to be made to said Will. People generally create a codicil to their Will if they want to modify certain terms of the Will without having to create a new one entirely or go through the process of updating said Will. Codicils are most useful for small, fairly inconsequential changes to a Will, such as a change of a beneficiary or additional burial instructions. If larger, more significant changes need to be made to a Will, it may be advisable to draft a new Will entirely or to talk to your attorney about the process of updating a Will.

If you have further inquiries, please contact our office at 941-906-1231 to schedule an appointment with one of our attorneys to discuss your estate and end-of-life planning.

July 24, 2018
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Are “Deathbed Wills” Valid in Florida?

By Elder Law, Estate Planning

A deathbed Will is one developed and executed when the individual creating the Will is facing imminent death. A deathbed Will may be created if someone experiences a rapid decline in health, whether it be due to an illness, accident or other factor, and does not have a current Will and/or estate plan in place. As long as the individual creating the Will is competent, a deathbed Will is considered as legally binding and valid in Florida as one that is drawn up in advance at an attorneys’ office. If a person is not competent at the time they create the deathbed Will or appears to have been unduly influenced by another individual, complications will likely arise, and the Will may be proven invalid in court.

Attorney Sean Byrne is a trust and probate litigator. Whether you are challenging or defending a Will or trust, you can contact Bach , Jacobs, & Byrne, P.A. to discuss your various legal options with regard to a Will or trust contest.

 

July 20, 2018
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What is a Qualified Domestic Trust (QDOT)?

By Asset Protection Planning, Estate Planning, Tax Law

A qualified domestic trust (QDOT) is a marital trust utilized for the benefit of a spouse that is not a U.S. citizen. This type of trust allows a non-U.S. citizen who is married to a U.S. citizen to qualify for the unlimited marital deduction, which keeps the estate from being subject to federal income taxes upon the death of the first spouse. Without a QDOT, these estate taxes would have to be paid at the first death. With a QDOT, however, the taxes are delayed until the surviving spouse passes. This is an estate planning tool implemented to allow the assets within the trust to provide for the non-citizen spouse after the citizen-spouse has passed away, without being heavily taxed first. If you are married to a non-U.S. citizen, Bach & Jacobs, P.A. attorneys can discuss a QDOT with you as part of your estate planning.

June 8, 2018
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What is a Payable-on-Death Account (POD)?

By Asset Protection Planning, Estate Planning

A payable-on-death account is a bank account that is titled to the original owner but that directs distribution of its funds to a beneficiary upon the owner’s death. As long as the creator of the account is alive, the beneficiary of the account has no access to the funds within it. This way, if someone ever needs the money in the account or changes their mind, they can spend the money, choose a different beneficiary or close the account. Individuals often opt for payable-on-death accounts because they are fairly easy to create, there is no limit on the amount you can leave to the beneficiary of the account, it is free to designate a beneficiary and it allows the asset to transfer to the designated beneficiary at the account holder’s death without first going through probate court.

June 5, 2018
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What is Intestate Succession?

By Estate Planning, Probate

If an individual dies intestate, it means that they passed away without having created a Will or estate plan. When someone dies without a Will or estate plan, their property passes into “intestate succession”. This means that state law determines who will get the assets of that person’s estate, as there is no Will to decide what should go to whom. In Florida, if you have children but no spouse, your children will inherit everything. If, on the other hand, you have a spouse but do not have children, your spouse will inherit everything. If you have both a spouse and children by that spouse and your spouse has no other descendants, your spouse will inherit everything. If you have a spouse and descendants from you and that spouse, but the spouse has descendants from another relationship, your spouse will inherit half of your intestate property and your children will inherit the other half. If you have a spouse and descendants from you and someone other than that spouse, the same principle applies and your spouse will inherit half of your intestate property while your descendants will inherit the other half. If you die without a spouse or descendants, your parents inherit everything. If you die with siblings but no spouse, descendants or parents, your siblings inherit everything. If you do not leave a Will or estate plan, then your estate will become property of the state only if you do not have a spouse, children, grandchildren, parents, grandparents, siblings, nieces or nephews, aunts or uncles, cousins, or great aunts or uncles at the time of your death.

April 20, 2018
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What are the Responsibilities of a Health Care Surrogate?

By Elder Law, Estate Planning

A health care surrogate is someone appointed to make healthcare decisions for you should you become incapacitated or unable to make them for yourself. When you appoint someone as your health care surrogate, be sure to inform them of this designation and make them aware of the responsibilities they may be faced with.

Any decision to give, withhold, or withdraw informed consent to any type of healthcare may become a responsibility for your health care surrogate if you become incapacitated. These include, but are not limited to:

  • Medical and surgical treatments
  • Life-prolonging interventions
  • Organ donation
  • Deciding where medical treatment will be received
  • Psychiatric treatment
  • Making decisions regarding end-of- life procedures
  • Approving release of medical records
  • Communicating with other loved ones or family members about your medical treatment

For inquiries in regard to this matter, please contact our office at: 941-906-1231 to schedule an appointment with one of our attorneys.

April 13, 2018
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What Inheritance Rights Does My Adopted Child Have?

By Estate Planning, Probate

Typically, adopted children have the same legal right to inherit assets from their adoptive parents as biological children do. When a child is adopted, their legal ties to their biological parents are severed. This means that they have inheritance rights with their adoptive parents, but not with their birth parents.

Adopted children have the right to be included in general references to “my children” in a Will. They may also have the right to receive property if they are accidentally or unintentionally left out of a Will. For example, if a Will had not been updates since before the adoption of a child, then that adopted child still has rights to a certain portion of the estate. An adopted child also has the right to receive property in intestate succession, meaning that, if a child’s adoptive parents die without a Will, then the child has the same right to receive a certain portion of the adoptive parents’ property as a biological child would.

Just like with a biological child, you can disinherit an adopted child from your Will, but if you choose to do so you should state this explicitly.

To learn more about this matter, contact our office at 941-906-1231 to schedule an appointment with one of our attorneys.

 

April 6, 2018
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