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.
Probate can be necessary or appropriate in certain cases. However, these are some common disadvantages to probate. Probate in Florida can be a lengthy process which can begin as soon as a death certificate is issued or can be brought years after a death.
Because creditors are paid before beneficiaries in probate, beneficiaries usually must wait until the process of probate is over to receive their payout.
Financial costs are involved in commencing and administering a probate proceeding, including filing court fees, the fees of the Personal Representative, and the fees of the attorney administering the estate.
To consult with an experienced estate planning attorney about whether probate would be the most advantageous process by which to administer your estate, contact our office at (941) 906-1231.
Probate can be a good option for those who do not want to spend money during their lifetime on legal fees to prepare Trust documents. Allowing an estate to go through probate would instead cause the cost of distributing the estate to come out of the heirs’ inheritances.
Probate is also a good option if the deceased is owed assets or payments at the time of death. Probate may be necessary in this situation for the Personal Representative to collect on behalf of the estate. Some examples of cases in which this is useful is when a promissory note is payable to the deceased, an inheritance due was not paid to the deceased prior to death, or in the situation of a personal injury claim if the estate has a wrongful death or other suit against the party that caused the death.
If the deceased has unresolved tax debts with the IRS or another taxing authority, probate allows the Personal Representative the chance to negotiate and attempt to reduce or resolve the tax debt.
Lastly, probate can sometime benefit the family by having the court oversee and make decisions in abnormally complex family situations or disputes.
If you have questions about probate, contact one of our experienced estate planning attorneys at (941) 906-1231 to review your individual needs and receive personalized recommendations.
Probate assets include assets for which the deceased person was the sole owner or jointly owned assets which lacked provisions for automatic succession of ownership at death. Non-probate assets include jointly held property for which ownership includes the “right of survivorship.” In this situation, the surviving owner automatically owns the property when the other owner dies. Other examples of “non-probate assets” are assets titled in the name of a trust or assets that have formal “beneficiary distribution” assignment to them, such as IRAs, life insurance policies, or payable-on-death accounts.
Probate is a court-supervised process for identifying and gathering the assets of a deceased person, paying their debts, and distributing their assets to beneficiaries only after some of these assets are used to pay the costs associated with probate court.
The two main types of probate administration are formal administration and summary administration which occurs if assets are less than $75,000. If assets are less than $6,000 a non-court supervised administration proceeding called disposition of personal property without administration occurs. In Florida, the person in charge of the estate is called the personal representative. The personal representative is in charge of giving notice of the probate proceedings to “known or reasonably ascertainable” creditors in order to ensure all of the deceased’s debts are paid.
Beneficiaries are the people who inherit assets from the deceased.
If you are looking to avoid probate through estate planning or are currently going through probate or ancillary probate and need legal advice, contact one of our experienced attorneys at (941) 906-1231.
