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.
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.
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.
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.
An incentive trust is a trust designed to encourage or discourage the occurrence of certain behaviors in the trust’s beneficiaries by using the distributions of the trust as an incentive. An incentive trusts holds and manages assets for the benefit of the beneficiaries of the trust, but it is different than any other type of trust in that it uses the trust’s assets to award beneficiaries for achieving desired goals. This type of trust is often used by parents or grandparents to pass on wealth to their children or grandchildren while dually encouraging them to be personally responsible and reach important milestones in their lives. This type of trust can also lay-out specific instructions regarding how the money within the trust can be distributed and can employ certain techniques that help ensure the beneficiaries of the trust will have financial independence beyond what the trust has given them. Advantages of incentive trusts include implementing age restrictions regarding when the beneficiaries can receive the assets within the trust, encouraging educational achievement, discouraging illegal or destructive behaviors and motivating positive behaviors.
If you have any further inquiries regarding this matter, please contact our office at: 941-906-1231 to schedule an appointment with one of our attorneys.
In some cases, individuals are able to complete a process referred to as Disposition of Personal Property Without Administration. You can refer to the 2017 Florida Statute (Statute 735.301) that addresses Disposition Without Administration to determine eligibility for this process. This statute states that:
1) No administration shall be required or formal proceedings instituted upon the estate of a decedent leaving only personal property exempt under the provisions of s. 732.402, personal property exempt from the claims of creditors under the Constitution of Florida, and nonexempt personal property the value of which does not exceed the sum of the amount of preferred funeral expenses and reasonable and necessary medical and hospital expenses of the last 60 days of the last illness.
2) Upon informal application by affidavit, letter, or otherwise by any interested party, and if the court is satisfied that subsection (1) is applicable, the court, by letter or other writing under the seal of the court, may authorize the payment, transfer, or disposition of the personal property, tangible or intangible, belonging to the decedent to those persons entitled.
3) Any person, firm, or corporation paying, delivering, or transferring property under the authorization shall be forever discharged from liability thereon.
To obtain a Disposition of Personal Property Without Administration, completion of the following forms is required:
- Disposition without Administration Petition (3 pages, notarized)
- A certified copy of the death certificate
- Copies of medical and hospital bills for the last 60 days of illness
- Copy of paid funeral bill
- Copy or copies of documents that show the asset you are attempting to transfer to you (ex: bank statements, stock certificates, insurance policies, etc.)
- Signed and notarized consent from all heirs
- Original Last Will and Testament of the decedent (provided one exists)If you qualify for this process or would like more information, the Sarasota County Clerk’s website has directions regarding how to apply and provides the necessary forms.
A trust is an entity created by an individual (the settlor) to hold assets for the benefit of the trust’s beneficiaries, while a trustee is appointed to manage the trust. Decanting a trust is the act of distributing assets from an old trust to a new trust that has more amicable terms. It gets its name from the process of decanting wine from its original bottle to a new one in order to eliminate any sediment residue; decanting a trust allows you to pour the assets from one trust into another while getting rid of any terms that aren’t amenable. Decanting is a powerful tool, as it allows the trustee of an irrevocable trust (one that cannot be modified or terminated after it has been signed) to essentially re-write an irrevocable trust without having to go to court, so long as the trustee complies with the motive and consent requirements of the Florida Trust Code.
A spendthrift trust is a trust created for an individual that gives an independent trustee full authority regarding how the trust funds may be spent to meet the needs of the beneficiary (the individual receiving assets from the trust). In this situation, the beneficiary of the trust is not allowed to spend the money until they receive distributions and the trustee has determined what payments are necessary according to the trust agreement. A spendthrift trust can be a powerful estate planning tool if you have a troubled child who you still want to provide for after you pass away, but who you do not believe has the capability to make sound financial decisions. A spendthrift trust is generally used in situations where a child is troubled, has an addiction problem, is irresponsible with spending, or has credit problems. A spendthrift trust is a way to control an individual’s spending of the money you have left them and alleviates the stress or worry you may feel about a having the assets you worked so hard to obtain being wasted. It also allows you to avoid going through the uncomfortable process of having to disinherit a child whom you don’t trust with money because you know, if given free reign, they will waste it or spend it on unsavory items.
An explanatory letter is a separate document that you attach to your Will. The purpose of an explanatory letter is to explain the wishes set forth in your Will. When you create a Will, it is wise to include only the specific instructions regarding disbursement of your assets, rather than going into great detail explaining why certain assets are being given to certain beneficiaries. An explanatory letter is the place to include the reasoning behind the wishes you expressed in your Will and make any necessary explanations regarding said Will. Things that you can include in your explanatory letter are: explanations about gifts, final thoughts, and instructions for what to do with a pet. An explanatory letter is not at all legally binding, but can help to clarify your intentions if your Will is in any way contested. It also allows you to have a final say on any personal matters, which can help bring peace of mind to your loved ones.
When you create a Will, you must obtain signatures from at least two witnesses at the time you sign it for it to be considered valid. The purpose of having two witnesses is so that, if the validity of your Will is ever challenged, they can both attest to your state of mind. These witnesses do not have to read your Will or even be aware of its contents, they just have to be able to certify that you were competent when you signed it. If you are working with an attorney, they should make you aware of this information and help explain the process of having a document witnessed. However, it is good to know some general information regarding rules for witnessing so that you feel more prepared when the time comes to make your Will official or update it.
If you would like to choose your own witnesses, be careful who you pick. Select individuals that are credible and will likely live longer than you, in case they are later asked to testify about the validity of your Will. If possible, avoid having beneficiaries of your Will also be witnesses, as this could be considered a conflict of interest. However, having a beneficiary or interested person witness the Will does not automatically invalidate the Will. If you would rather not choose witnesses, the attorney that you have been working with will likely have paralegals or legal assistants on-hand that can serve as credible witnesses. This eliminates the added stress of having to choose your own witnesses and bring them to the signing. At Bach & Jacobs, members of our team generally serve as witnesses during Will and trust signings.
Make sure you have the right number of witnesses, as every state requires that you have two individuals sign your Will in order for it to be legally binding. Additionally, these witnesses must sign your Will in front of you. Generally, your witnesses will sign the Will immediately after you do.
