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Probate

Ever Wonder What Happens to a Deceased Person’s Online Accounts After They Pass Away?

By Estate Planning, Probate

Ever wonder what happens to a deceased person’s online accounts after they pass away?

With so many people going ‘paperless’ and communicating online, the Personal Representative of a probate estate may have trouble identifying online accounts and obtaining the digital content in those accounts.  The state of Delaware recently passed a law that gives estate attorneys, executors and other fiduciaries more access to those online accounts after a person passes.  The Wall Street Journal says the Delaware law “could set a national trend” as policy makers “wrestle with how to handle the digital remains people leave behind.”  Florida may become one of the next states with similar legislation—a committee of the Florida Bar has been formed to propose such legislation.

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 this information.   We can also help you identify your digital assets and ensure that they are fully accounted for in your estate planning documents.

You can read the Wall Street Journal article here: http://blogs.wsj.com/law/2014/08/20/new-law-expands-access-to-google-facebook-accounts-of-deceased/

August 29, 2014
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Impact of Divorce on Probate of a Will in Florida

By Estate Planning, Probate

Question:  My father died shortly after he and my stepmother got divorced. I don’t think he updated his will after the divorce.  If his ex-wife was in the last will, does that mean she’ll inherit even after she got a divorce settlement?

Answer:    Unless the will or judgment expressly provides otherwise, if your father’s will provided for his then-wife, but they later got divorced, then those provisions benefiting the now ex-wife are void under Florida law.  In fact, the Florida Probate Code construes such a will as if the former spouse had died before the deceased spouse as of the date of the dissolution, divorce, or annulment of the marriage.  If your father designated your step-mother as his personal representative of his estate, you should look to the will to see if he appointed a successor personal representative.  If he didn’t, you may be able to petition the court to be appointed personal representative.  If someone you love has recently passed, contact Bach & Jacobs and schedule an appointment with one of our attorneys who can guide you through the probate process.

May 21, 2014
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When is ancillary administration necessary for non-Florida residents who die owning real estate in Florida?

By Elder Law, Estate Planning, Probate

Question:     When is ancillary administration necessary for non-Florida residents who die owning real estate in Florida? What are the options for ancillary administration?

Answer:    When a resident of another state dies owning real estate in Florida titled in the decedent’s name, probate proceeding must be commenced to validly transfer the property after the death.  This is the case even if a personal representative has been appointed in the decedent’s home state.  If the decedent left a will, any person may petition to admit the Foreign Will to Record in the Florida County where the property is located.  The person petitioning for admission of the will should have “authenticated copies” (learn more about authenticated copies here).  The probate court will appoint an ancillary personal representative who is qualified under the Florida Probate Code who will administer the ancillary probate for the Florida estate. There are other options available to certain ancillary estates that have  values less than $50,000 called short form ancillary administration.  There is also a proceeding called summary administration available to estates with property subject to Florida probate that are worth less than $75,000.  If you are seeking to administer the Florida assets of a non-Florida resident decedent who has died, contact Bach & Jacobs, P.A. to learn which options are available to you under Florida Law.

March 14, 2014
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Can a Guardian Initiate a Probate Proceeding When the Ward Dies?

By Elder Law, Estate Planning, Guardianship, Probate

Question:     I was the guardian for a ward who has recently died.  Can I petition to open a probate proceeding and be appointed personal representative also?

Answer:    Usually, the named personal representative in the decedent’s will is the one who initiates the probate proceeding.  The guardian, who typically will have all of the deceased’s personal records, would normally notify all the family members and the personal representative designee upon the ward’s death.  However, sometimes the decedent dies intestate (without a will) or the designated personal representative is unable to serve.  The guardian is considered an “interested person” under the Florida Probate Code for the purposes of commencing probate proceedings and can open the probate.  The guardian may be required to commence the probate proceedings to transfer the guardianship assets to the probate estate.  However, there could be some cases where the guardian’s appointment as personal representative of the ward’s estate is inappropriate.  For example, if a conflict of interest existed between the ward and the guardian prior to the death of the ward, then the court may be inclined to appoint a guardian ad litem, an administrator ad litem, or a different personal representative all together.  If you are the guardian for a recently deceased ward or want to petition to be appointed the personal representative for a deceased ward, contact Bach & Jacobs to schedule an appointment with one of our attorneys.

December 26, 2013
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Home for the Holidays: Talking with your Personal Representative About Your Estate Plan

By Estate Planning, Probate

Question:     Should I let the person I have designated as my personal representative know about my estate plan?

Answer:    Your personal representative—referred to as an executor in some states—is the person responsible for carrying out the provisions of your will.  That person could be a reliable family member, but can also be a trust officer, attorney, or even a trusted friend.  It is often advisable to at least let the individual or entity know that you have chosen them and confirm they are willing to serve in that role.  You should know that there are eligibility requirements for personal representatives under Florida law.  For example, those who have a felony conviction, as well as non-Florida residents who are not related to the deceased, cannot qualify as a personal representative.  Whether you walk that person through the details of your will is a personal decision—you certainly have the right to keep it private.  Although, it can sometimes be helpful to at least discuss some practical matters relating to your estate, such as who to contact upon your passing, how to pay for basic expenses like funeral costs and taxes, and what your funeral and burial wishes are.  The paperwork a family and personal representative may have to deal with regarding a deceased loved one’s estate plan can be overwhelming if they do not know who to go to for help.  The attorneys at Bach & Jacobs can advise you about the eligibility of your preferred personal representative.  Call Bach & Jacobs, P.A. to schedule an appointment to review your estate plan.

December 17, 2013
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Is an Attorney Required for Probate Administration in Florida?

By Elder Law, Estate Planning, Probate

Question:  If I am the personal representative for an estate in Florida, am I required to have an attorney for the probate administration in the Florida circuit court?

Answer:    Florida law requires an attorney in a formal probate proceeding except in the rare case where the personal representative is the sole interested person. However, Florida probate procedures are complicated and most non-lawyers will have a challenging time trying to proceed without an attorney.   Just determining who fits the statutory definition of “interested person” requires an understanding of the Florida Probate Code and the Florida Rules of Probate, which apply to even the most basic estate administration.  If you have been named the personal representative in the will of someone recently deceased and you would like assistance with the administration of the estate, contact Bach & Jacobs to meet with one of our attorneys.

December 6, 2013
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Where Can I Research the Florida Probate Law?

By Elder Law, Estate Planning, Probate

Question:     Where can I find trusted, general information on the probate process in Florida?

Answer:    One obvious source of information on probate law topics in Florida is on the Bach & Jacobs, P.A. website where you can view frequently asked questions relating to probate and the administration of estates.  Another source for a general overview of basic probate concepts is the Probate in Florida Pamphlet, available for free viewing at the The Florida Bar website. If you would like advice or assistance specific to your probate matter, contact Bach & Jacobs at (941) 906-1231 to schedule an appointment with one of our attorneys.

December 3, 2013
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Can Lawyers Be Beneficiaries of a Client’s Estate in Florida?

By Elder Law, Estate Planning, Probate

Question:  I was appointed personal representative of an estate and I saw in the will that the lawyer who drafted it wrote himself in as a beneficiary of the estate.  That seems inappropriate.  Is that ethical?

Answer:    Unless the attorney is related to the deceased client, Florida law prohibits such a gift.  The Florida Legislature passed a law that became effective October 1, 2013 that voids a gift to a lawyer, or certain persons related to or affiliated with the lawyer if the lawyer prepared the instrument making the gift or solicited the gift.  An exception is made for the lawyer or recipient of the gift who is related to the client.  If you are the personal representative of an estate and would like assistance with the administration of the estate, contact Bach & Jacobs to have your estate planning documents reviewed by our attorneys.

November 26, 2013
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Are Holographic Wills Valid in Florida?

By Elder Law, Estate Planning, Probate

Question:   I read on the internet that I could handwrite my own will without having the formality of witnesses and that the will would be valid for probate.  Is that true?

Answer:    While you can certainly handwrite your will, in order to be valid in Florida a will must be signed in the presence of two witnesses, who must also sign the will in the presence of the testator and one another.  Some states recognize handwritten or ‘holographic wills’ and excuse the lack of other formalities, such as witnesses, but the Florida Probate Code does not.  If one tries to have a holographic will admitted to probate in Florida that did not comport with the proper formalities of will execution, the decedent’s estate will be distributed according to the laws of intestacy, not the provisions of the invalid will.  If you are concerned that your will or trust may be invalid under Florida law, contact Bach & Jacobs at (941) 906-1231 to have your estate planning documents reviewed by our attorneys.

November 22, 2013
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