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Estate Planning

What is the distinction between “surviving” powers of attorney and “springing” power of attorney?

By Estate Planning, Guardianship

The key difference between surviving and springing powers of attorney is the time at which they take effect. Surviving powers of attorney are entrusted to the agent as soon as the paperwork is signed – the term “surviving” refers to the “durability” of this agreement, which lasts until and even after the point at which the ward becomes incapacitated. Springing powers of attorney, on the other hand, only go into effect after the ward is incapacitated.

After June 2011, the updated Florida Durable Power of Attorney Act formally banned springing powers of attorney (though any durable powers of attorney agreed upon before the institution of the new law were to remain valid). Having a durable power of attorney is an important part of comprehensive end-of-life planning and estate planning. Call the attorneys at Bach, Jacobs & Byrne, P.A. to have your estate plan assessed and evaluated.

November 5, 2018
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How can probate litigation be avoided?

By Estate Planning, Probate

Depending on the situation, there are steps that you can take to mitigate and even avoid the stresses of probate litigation.

In probate cases, advance communication can make the process of probate administration easier on all parties involved. Family members may sit down before the death of a loved one and have a conversation about the distribution of assets.

Open and honest communication can help proactively avoid litigation over disputes between fiduciaries and conflicts between beneficiaries and fiduciaries, as well. Having your estate plan documents in order is also important. For help creating your will or trust or to review your existing documents, please call (941) 906-1231 to set up an appointment with the lawyers at Bach, Jacobs & Byrne, P.A.

September 28, 2018
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What is the difference between “per stirpes” distribution and “per capita” distribution?

By Estate Planning, Probate

In Latin, “per stirpes” means “by class/stock,” and “per capita” means “by head.” In the process of estate planning and the administration of a will, these terms play a key role.

The best way to illustrate how these terms come into play is with a couple examples. Let’s say Dusty is the testator of a will. Dusty has four children: Ruby, Pearl, Jade, and Sapphire. Ruby has one son (George), and Pearl has two sons (John and Paul). Neither Jade nor Sapphire have any children.

If Dusty’s will specifies that his assets are to be distributed to his descendants “per stirpes”, his assets will pass on with top priority to the class of living beneficiaries closest in relation to him – in this case, his four daughters. Ruby, Pearl, Jade, and Sapphire each receive 1/4 of the assets. Neither George, nor John, nor Paul receives a share.

But, let’s say that Pearl has predeceased Dusty. If the bequest to Pearl was “per stirpes”, then John and Paul will then each receive 1/8 of the assets of Dusty. In the scenario where Ruby predeceases Dusty, George receives Ruby’s quarter share of Dusty’s assets.

Now, let’s say that Dusty’s will specifies that his assets are to be distributed to his descendants “per capita.” In that scenario, when Dusty dies, his assets will be split equally among all surviving descendants. Thus, Ruby, Pearl, Jade, Sapphire, George, John, and Paul will each receive 1/7 of Dusty’s assets. If Ruby and John have predeceased Dusty, then the remaining descendants each receive 1/5 of Dusty’s assets.

September 18, 2018
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As co-agents appointed with Durable Powers of Attorney, can each agent act independently?

By Elder Law, Estate Planning

We turn to Florida Statute §709.2111 to answer this question. Sub-section 1 states, “A principal may designate two or more persons to act as co-agents. Unless the power of attorney otherwise provides, each co-agent may exercise its authority independently.” So, while there are certainly exceptions to the rule (when specified in the Durable Power of Attorney itself), co-agents can indeed act separately from one another. However, you should be aware of the drawbacks of having two agents acting independently with your assets.

To have a Durable Power of Attorney prepared for you and discuss the implications of your choice of agents, or to review your existing documents, do not hesitate to call the attorneys at Bach, Jacobs & Byrne, P.A. at (941) 906-1231 to set up an appointment.

 

September 10, 2018
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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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