Probate disputes can become time consuming and expensive processes which is why many prefer to settle outside of court through arbitration or mediation as alternatives to a full court proceeding. These processes are less formal than court proceedings and, consequently, are also more flexible. Through arbitration, both parties agree to adhere to the decision made by a third party arbitrator who usually specializes in certain types of cases. In mediation, a third party works to propose a solution which both parties will agree to. Both processes allow each side to present their personal view of the case and can lead to creative solutions compared to standard court decisions.
If for financial or tax reasons you do not wish to receive an asset for which you are a beneficiary, you can use a qualified disclaimer to pass this asset instead to other listed beneficiaries. This may be beneficial for individuals who do not wish to claim an asset they are set to inherit for tax purposes. To make sure your qualified disclaimer is compliant with IRS codes it must be in writing, delivered within a set amount of time dependent on specific circumstances, and irrevocable. The assets you disclaim cannot be directed by you and will usually pass to the spouse of the decedent.
It is important to consult an experienced attorney when planning to submit a qualified disclaimer. Contact our Board Certified Tax Law Attorney Fredric Jacobs, Esq. at (941) 906-1231.
Fighting over an inheritance can both cause significant family tension and a reduction in the inheritance heirs will receive due to legal fees. To avoid this situation, you must set up a very clear estate plan. Talk with your family about who you all agree would be the best executor of your estate and who will receive power of attorney if you are incapacitated.
The following are some documents you should put in place before you are dealing with any type of incapacitation:
- Will
- Trust
- HIPAA Release
- Power of Attorney
- Health Care Surrogate
- Living Will
- Pre-Need Guardian
- Guardianship plan for minor children and pets
If you would like to modify any estate planning documents already in place or begin to form an estate plan, contact Bach & Jacobs, P.A. today at (941) 906-1231.
Unfortunately, many people’s identities are stolen after they die. This obviously creates much trouble and confusion for family members attempting to honor the wishes of their deceased loved one by administering their estate or distributing their assets. The following are some tips for how you can minimize the threat of your deceased loved one’s identity being stolen:
- Contact the Social Security Administration promptly so that your deceased loved one will be removed from the payroll. This also comes with a monetary benefit as the SSA gives $225 to people who report a beneficiary of social security as deceased.
- Close social media accounts.
- Close credit card accounts and call the major credit reporting bureaus, telling them to add “Deceased. Do Not Issue Credit.” to your loved one’s credit report so that new accounts cannot be opened.
- Ensure all documents such as bank statements, IDs, and anything containing your loved one’s social security number are kept in a secure location.
Bach & Jacobs, P.A. represents and advises personal representatives (aka executors) and family members who are dealing with what to do after someone dies. Contact Bach & Jacobs, P.A. at (941) 906-1231 for assistance in administering the probate and/or trust for your loved one.
Undue influence often involves a family member or friend coercing someone to add or remove beneficiaries from their estate planning documents in the last months of life or when their mental ability begins declining. In determining if undue influence was exercised, the court evaluates whether mental inequality, or a notable difference in mental sharpness of the elder and accused exploiter, existed at the time of contested will revisions.
Out of several circumstances under which a will could be contested in Florida, the simplest is the will was not drafted using the proper formalities. For example, if a will is not witnessed as per state requirements, it can be contested and thrown out.
Other grounds for contesting a will include:
- If the writer is found to have lacked capacity at the time of its drafting.
- Due to the testator being manipulated or exploited, especially during old age if “undue influence” occurs.
- if the author of the will suffers “insane delusions” which cause them to change the beneficiaries of the will, such as if a person believes their husband has left them and decides to remove the husband from their will when in fact the husband visits his spouse every day.
- If fraudulent activity occurs. For example, if someone lies about other family members or beneficiaries and these lies cause the slandered family member to be taken out of a will.
Wills must be contested very quickly, generally within 90 days of when the Personal Representative files and serves the Notice of Administration. It is also possible for other testamentary documents besides wills to be contested if the situations listed above apply.
If you have questions about whether a will can be contested or to ensure your estate planning documents will not be contested, contact our office at (941) 906-1231 to speak to an experienced probate attorney.
Use this digital asset inventory template to keep track of all of your important usernames and passwords for your digital fiduciary or personal representative. You should designate who you authorize to access each account or computer and also specify what they are authorized to do. For instance, you may wish for your Facebook account to be closed but want your email account to be preserved so your personal representative can retrieve stored sentimental photos.
Digital Assets Inventory Template
This list of account information should be kept in a secure location with other estate planning documents.
The attorneys at Bach & Jacobs, P.A. make efforts to stay on the cutting edge of new technologies that assist our clients, including the Personal Representatives that we represent. We recommend all trust and durable power of attorney documents specifically authorize access to digital information. We can also help you identify your digital assets and ensure that they are fully accounted for in your estate planning documents.
To set up an appointment to review what estate planning method would be best to grant access to your digital assets, call our office at (941) 906-1231.
To ensure that your digital assets are protected and dealt with as you desire after death, be sure to compile all usernames and passwords for online subscriptions and accounts in a secure location. Also, speak with an estate planning attorney about how to ensure your durable power of attorney will have authorization to access assets such as online bill pay, photos, or social media accounts. You should specify which, if any, of your digital assets you want deleted and, if you have digital assets which earn profits, where you want that money to go and who is able to access and handle it. An attorney can tell you where your digital asset wishes should be expressed, keeping in mind that wills become public record after death.
Planning for digital assets is a newly emerging issue in estate planning and is complicated by the fact that many accounts on websites such as Facebook and Google have Terms of Service agreements which can be violated by anyone besides the original account holder authorizing someone else to log in. Attempting to access an account without proper permission can constitute a violation of anti-hacking laws.
The attorneys at Bach & Jacobs, P.A. make efforts to stay on the cutting edge of new technologies that assist our clients, including the Personal Representatives that we represent. We recommend all trust and durable power of attorney documents specifically authorize access to digital information. We can also help you identify your digital assets and ensure that they are fully accounted for in your estate planning documents.
To set up an appointment to review what estate planning method would be best to grant access to your digital assets, call our office at (941) 906-1231.
Digital assets such as online bill pay accounts, online investment management accounts, personal records, digital movies, books, games, airline rewards points, and photos must be accounted for in modern estate planning to ensure your loved ones can access and control your digital accounts as you wish. As technology plays a growing role in our everyday lives, some of our assets carry personal value, such as photos and videos, and others, such as online blogs with paid advertisements, may even have monetary value. In order to ensure that personal accounts, sites, and memories are available to the desired loved ones after death, who you want to be given access to your digital accounts and what type of control they may have over them must be included in your estate planning documents.
At Bach & Jacobs, P.A., we incorporate planning for the transfer of digital assets into our estate and end of life planning for clients. Call our office today at (941) 906-1231 to set up an appointment to review how to make your digital assets a part of your estate plan and ensure access to these accounts is granted safely and as you desire.
Certain assets by their very nature can avoid probate. Probate is not necessary to transfer certain jointly owned non-probate assets because these assets pass by operation of law. In Florida, joint ownership is available through “joint tenancy,” which works well when couples acquire real estate, vehicles, bank accounts, or other valuable property together. Additionally, “tenancy by the entirety” is available for married couples in Florida. These provide for a “right of ownership,” transferring the ownership to the surviving joint owner.
Bank accounts can be transferred without going through probate if the account is designated as “payable-on-death.” Your beneficiary has no right to this asset while you are alive as you still own and control it.
Stocks and bonds can be designated as “transfer-on-death” (also called beneficiary) form. The beneficiary named will inherit this type of account automatically at your death. Again, it is important to check this designation as assets change over time as do intended heirs.
Similar to “payable-on-death” and “transfer-on-death” accounts, “Individual Retirement Accounts” (IRAs) are distributed based on beneficiary designations upon the account-holder’s death. You should consult with a Board Certified Tax Lawyer to learn about the options available for transferring IRAs and the relevant tax implications.
As long as a life insurance policy is payable to an individual or entity other than the policy owner, life insurance policy death benefit proceeds are transferred directly to their beneficiaries.
In Florida, you can make a “revocable living trust” to manage assets during your incapacity and then to avoid probate. Trusts can be used for all assets you own including real estate, bank accounts, vehicles, IRAs, etc. A trust document names someone to take over as trustee after your incapacity or death (called a successor trustee) so that they can transfer the property controlled by the terms of the trust to the trust beneficiaries without probate court proceedings after your death. You may amend or revoke your living trust so long as you have the capacity to do so.
Trusts are always recommended to avoid ancillary probate for out-of-state real and tangible personal property owned. The standard probate avoidance techniques – revocable trusts, joint with right of survivorship ownership, life estates – will work to avoid ancillary probate as well. Steps taken with respect to real property should also include related tangible personal property, or probate may be avoided for the real property, but still required for the tangibles.
To consult with Board Certified Tax Attorney Fredric Jacobs, Esq. and an experienced estate planning attorney, contact our office at (941) 906-1231.
