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Probate

My Dead Relative Received a Stimulus Check. How Do I Return It?

By Elder Law, Government Benefits, Probate, Tax Law

According to the IRS, stimulus payment made to someone who died before receiving it should be returned to the government. If the payment was made to a single filer, the entire payment should be returned. If the payment was made to joint filers, and one spouse had not died before the receipt of the payment, only the portion of the payment made on account of the decedent should be returned. This amount will be $1,200.00, unless the joint adjusted gross income exceeded $150,000.00.

If the payment was a paper check and you have not cashed it:

  1. Write “Void” in the endorsement section on the back of the check.
  2. Mail the voided Treasure check to the appropriate IRS location, based on your state of residence. This information can be found at https://www.irs.gov/coronavirus/economic-impact-payment-information-center#more. If you live in Florida, the check should be mailed to:

         Austin Internal Revenue Service

3651 S. Interregional Hwy

Austin, TX 78741

  1. Do not staple, bend, or paperclip the check.
  2. Include a note stating the reason for returning the check.

If the payment was a direct deposit, or if the payment was a paper check and you have cashed it:

  1. Submit a personal check, money order, etc., payable to “U.S. Treasury,” immediately to the appropriate IRS location, based on your state of residence. This information can be found at https://www.irs.gov/coronavirus/economic-impact-payment-information-center#more. If you live in Florida, the check should be mailed to:

         Austin Internal Revenue Service

3651 S. Interregional Hwy

Austin, TX 78741

  1. Write “2020EIP” and the deceased recipient’s social security number on the memo line of the check.
  2. Include a brief explanation of the reason for returning the payment.

Fred Jacobs is a Florida Board Certified Tax Lawyer.  Contact Fred at Bach, Jacobs & Byrne, P.A. to discuss tax planning for you and your family. Call (941) 906-1231 to schedule an appointment.

May 20, 2020
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My Dead Relative Received a Stimulus Check. Can I keep it?

By Government Benefits, Probate

There have been a number of glitches in sending stimulus payments to Americans under the recently enacted CARES Act, including sending stimulus payments, which are intended to ease the financial stress caused by the Coronavirus, to dead people. Initially, this issue left many unanswered questions for the relatives of the deceased. What should I do with the money? Do I get to keep it? Should it be deposited into an estate account? Should I send it back? However, now, the IRS has issued specific guidance on what to do if you receive a stimulus check for a deceased person.

According to the recently released guidance, the IRS says that a stimulus payment made to someone who died before receiving  should be returned to the government. If the payment was made to a single filer, the entire payment should be returned. If the payment was made to joint filers, and one spouse had not died before the receipt of the payment, only the portion of the payment made on account of the decedent should be returned. This amount will be $1,200.00, unless the joint adjusted gross income exceeded $150,000.00.

Fred Jacobs is a Florida Board Certified Tax Lawyer.  Contact Fred at Bach, Jacobs & Byrne, P.A. to discuss tax planning for you and your family. Call (941) 906-1231 to schedule an appointment.

May 19, 2020
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What happens to my assets in foreign countries when I die?

By Elder Law, Estate Planning, Probate

The probate procedures in every country are unique, and different inheritance laws can clash. Usually, when an individual dies leaving assets in multiple countries, it is necessary to obtain a Grant of Probate or similar document in each of the countries where assets remain. A probate attorney from the foreign country is often consulted in tandem with a domestic probate attorney, too – this can help streamline the probate process and ensure that the probates in each country do not undermine each other.

To plan for an estate that will likely have foreign assets, a foreign codicil to a domestic Will may be drafted, as well. This is a document which acts as a supplement to an original Will which accounts for the immovable assets (i.e. real property) remaining in a foreign country. Or, one may look into drafting a formal Will in the foreign country, being careful to specify which assets the new Will is addressing and to reference the original domestic Will. Whether one uses a foreign codicil or drafts a separate foreign Will, it is important to acknowledge the foreign assets so as to avoid leaving them subject to intestacy rules.

For advice and guidance in creating your Will(s) and planning for your estate, especially if you own foreign assets, contact the highly-trained and dedicated attorneys of Bach, Jacobs & Byrne, P.A. Call us at (941) 906-1231 to set up a consultation.

July 9, 2019
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What is summary administration in Florida?

By Estate Planning, Probate

Summary administration is a form of probate which is generally less time-intensive and less expensive than a full probate. Pursuant to the Florida Probate Code, the following conditions must be met for an estate to qualify for summary administration:

  • The gross value of the probate estate does not exceed $75,000, or
  • The decedent has been dead less than two years

If the Will does not include a direct instruction to conduct a formal probate, a petition with the court may be filed requesting summary administration, if either of the two factors above apply to the situation. This petition can be filed by any beneficiary of the Will or any individual nominated to serve as personal representative in the Will, and it must be signed or joined in by the surviving spouse (if any). If the court accepts the petition, it may order the assets to be immediately distributed to the designated beneficiaries, presuming all creditors have been paid or will be paid.

For guidance through the probate process and for assistance drafting a petition for summary administration, contact the elder law and trust & estate attorneys of Bach, Jacobs & Byrne, P.A. at (941) 906-1231.

July 5, 2019
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Does Florida honor foreign Wills?

By Elder Law, Estate Planning, Probate

Yes, but with conditions. The Florida Probate Code states: “Any Will, other than a holographic or nuncupative Will, executed by a nonresident of Florida, either before or after this law takes effect, is valid as a Will in this state if valid under the laws of the state or country where the Will was executed.”

A holographic Will is one handwritten by the testator and not witnessed, whereas a nuncupative Will is one relayed orally by the testator to another person but never put in writing. Neither type of Will is valid in Florida, even if the state where it was executed permits such documents. Note that a handwritten Will that is witnessed is still valid under Florida law. Other than these exceptions, Florida generally recognizes any Will which was valid in the jurisdiction where it was created.

Even if an out-of-state Will is legally valid under Florida law, it may benefit the testator to update it so that it will reflect Florida law, which has many advantages for estates and trusts. To check whether your Will is valid in Florida probate court, or to revise and update your Will to reflect current Florida law, the elder law and estate attorneys of Bach, Jacobs & Byrne, P.A. are here to help. Call us at (941) 906-1231 to set up an appointment.

July 1, 2019
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What is summary ancillary administration?

By Probate

Summary ancillary administration is a type of ancillary probate in Florida (as a reminder, ancillary probates are generally necessary when a nonresident of Florida dies leaving real property in Florida). As defined in the Florida Probate Code, to qualify for this form of ancillary probate, the following criteria must be met:

  • The decedent had a Will
  • The decedent was not a resident of Florida
  • The decedent died less than two years ago
  • The decedent’s assets have a gross value of no more than $50,000
  • The personal representative was appointed by an out-of-state court
  • The pleadings from the foreign state probate court are available to be filed in a Florida court

In a summary ancillary administration, it is not necessary for a Florida personal representative to be appointed. However, the personal representative from out of state may file the transcript of the original probate proceedings with the Florida circuit court of the county where the decedent’s property remains, and he/she may also publish a notice of administration to all creditors and interested parties of the decedent’s Florida assets.

If you are a personal representative in need of probate guidance, the highly-skilled and experienced attorneys of Bach, Jacobs & Byrne, P.A. are here to assist you. Call us at (941) 906-1231 to set up an appointment.

June 17, 2019
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What is a probate caveat?

By Probate

Sometimes, there are other parties interested in the estate of a deceased person who are, for one reason or another, not in contact with the court-nominated personal representative of the estate. If these individuals want to receive prior notice regarding the commencement of the probate estate, they may file a probate caveat.

A potential beneficiary or creditor will file the caveat with the intent of getting the court to notify them upon the opening of the estate. A creditor may file the caveat only after the death of the given individual, whereas the potential beneficiary may file the caveat before or after that individual’s death. In so doing, the potential beneficiary will be able to contest the appointment of the nominated personal representative.

May 20, 2019
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“It’s All Greek to Me”: Fiduciary

By Estate Planning, Probate

 In this series of blog posts, we define esoteric legal terms and explain how they are used in law.

The word “fiduciary” has many meanings in law, but the Merriam-Webster definition ties together all uses of the word nicely: “of, relating to, or involving a confidence or trust.” Whether the term is applied to a will, a trust, or a power of attorney, it is the duty of the fiduciary to act in the best interest of his/her client, their estate, and their beneficiaries.

When it comes to probate, the fiduciary acts as the “Personal Representative” (a.k.a., “executor”) of the Will – the person in charge of distributing the assets and seeing the probate administration to its completion. The Personal Representative can be compensated for his/her services, known as “costs of administration.”

A trustee of a trust is the person appointed to hold and invest the assets of the trust. The fiduciary agent named under a power of attorney, like the trustee, has powers and responsibilities that go into effect as soon as the documents are signed.

May 14, 2019
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What constitutes a breach of fiduciary duty?

By Estate Planning, Probate

A fiduciary is an individual who has a duty to act in the best interests of another. There are many kinds of fiduciary relationships, but some of the most common are guardian-ward relationships, trustee-beneficiary relationships, and agent-principal relationships.

There is no one method by which a fiduciary duty may arise: certainly, a fiduciary relationship may be established explicitly, by contract, for example. But a fiduciary relationship can also be legally binding if it is established implicitly, without formal documents. Court cases surrounding breaches of fiduciary duties often hinge on the question of whether there existed a fiduciary relationship to have been breached in the first place.

With a Trust, the trustee acts as the fiduciary to the beneficiaries of the Trust, whereas in a probate, the personal representative of the estate acts as the fiduciary to the heirs of the estate. If you are Personal Representative or Trustee and are being accused of breaching your fiduciary duties, contact the trust and estate litigators of Bach, Jacobs & Byrne, P.A. to discuss your defense. Call us at (941) 906-1231 to set up a consultation.

May 2, 2019
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How do I find out if I am a beneficiary of a Will?

By Probate

After an individual passes away, the personal representative of their estate is appointed by the court. The Florida Probate Code instructs personal representatives to promptly serve Notices of Administration to the decedent’s surviving spouse and any beneficiaries named in the decedent’s Will. This document will include the contact information of the personal representative, the probate case file number, the address of the court in which the proceedings are pending, and a description of the relevant components of the probate process.

The attorneys at Bach, Jacobs & Byrne, P.A. are experienced and highly-skilled trust and estate attorneys who can guide you through the complex probate process. Call us at (941) 906-1231 to set up a consultation.

April 30, 2019
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