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Probate

Is Ancillary Administration Always Necessary for an Out-Of-State Resident Who Dies Owning Florida Real Estate?

By Elder Law, Estate Planning, Probate, Real Estate

Question:     Does Florida Real Estate Owned by an Out-of-State Resident Always Have to Go Through the Florida Probate Process?

Answer:    An “ancillary administration” of the estate is usually required when the property owned by the out-of-state resident is titled solely in the name of the deceased person.  This is the only way for title to be properly conveyed to the beneficiaries.  However, there may be instances where ancillary probate is unnecessary even though a resident of another state died owning Florida real estate assets.  For example, if the Florida real estate is titled jointly between the deceased person and another person or entity, the real estate would be transferred to the other person or entity without the need for ancillary administration.  Another example that would avoid ancillary probate is where the real estate is titled in the name of a trust, rather than in the name of the decedent.  If you are the personal representative for a non-Florida resident and want to know if an ancillary administration is required in Florida for the estate, call Bach & Jacobs to speak to an attorney.

October 2, 2013
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When an Out-of-State Resident Dies Owning Florida Real Estate

By Elder Law, Estate Planning, Probate, Real Estate

Question:     What happens when someone dies owning real estate or other assets in Florida, but is a resident of another state?

Answer:    If a deceased person was a resident of a state other than Florida, the estate will be administered in the county and state of residence.  However, even if the decedent’s estate is administered by the probate court of the state of residency, assets located in Florida, especially real estate, may have to be administered by Florida’s probate courts.  This is called “ancillary administration” and requires that the Florida court issue letters of administration to a personal representative qualified to act under Florida law.  If you are the personal representative for a non-Florida resident and need assistance with opening an ancillary administration in Florida for the estate, call Bach & Jacobs to speak to an attorney.

September 19, 2013
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What Happens if You Pass Away Without a Will or Trust?

By Elder Law, Estate Planning, Probate

Assets pass to the family members the state presumes to be the intended heir. If you pass away with a spouse and children surviving you, 100% of your estate would go to your spouse. If you pass away with a spouse and children from a previous relationship(s), 50% of your estate will go to your spouse and 50% of your estate would be divided among your children.

If you need legal advice for estate planning, Asset Protection Planning, or tax planning, please contact our office at (941) 906-1231 for an initial consultation.

August 21, 2013
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What Happens If Someone Dies Without A Will in Florida?

By Elder Law, Estate Planning, Probate

Question: What happens when someone dies without a will in Florida?

Answer: When someone dies ‘intestate’ (without a will), the State of Florida has an established protocol and priority that sets forth how a decedent’s assets are distributed.  With an intestate estate, the decedent’s spouse typically receives half or all of the decedent’s estate.  The amount the spouse receives depends on other family dynamics, such as whether the decedent or the surviving spouse has children from a prior spouse.

If your spouse or parent has recently died without leaving a will, Bach & Jacobs can help guide you through the process of distributing your loved one’s assets.  If you need legal advice for estate planning or would like a review of your existing legal documents, including a prior will, please contact our office at (941) 906-1231 for an initial consultation.

August 11, 2013
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Simple Will vs. a Revocable Living Trust by Babette B. Bach, Esquire

By Elder Law, Estate Planning, Probate

Simple Will vs. a Revocable Living Trust :
Simple Will:  A very effective tool to designate who gets what after death.  Probate is required but this is not usually a difficult process.  The average cost of probate is 3% of the probate assets and the average length of time to complete is six months.  Many assets are not part of the probate estate such as jointly titled real estate, IRAs, annuities, life insurance policies and jointly held assets.

 

Revocable Living Trusts;   These are more complex documents which provide for the trustee to manage assets while the settler is alive but incapacitated or deceased.  It can hold assets in trust for a variety of reasons after the settlor’s death.  Typical reasons may include, a spendthrift child, a disabled descendent, an income trust for the life of a surviving spouse, then residue to children upon death of surviving spouse, Charitable foundations, Pet trusts, generation trusts and tax planning etc.  There is still administrative work to do to administer a trust. Typical costs run about 2% of the trust estate.  It takes about the same amount of time to administer a trust as to probate a Will.

If you need legal advice for estate planning, Medicaid planning, or VA planning, please contact our office for an initial consultation.

 

Babette B. Bach, Esquire, Board Certified Elder Law

Fredric C. Jacobs, Esquire, Board Certified Tax Law
Bach & Jacobs, P.A.

240 S. Pineapple Avenue, Suite 700

Sarasota, FL 34236

941-906-1231

941-954-1185 facsimile

www.bachjacobs.com

April 24, 2012
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Probating a Lost Will in Florida by Babette B. Bach, Esquire

By Probate

Often family members are given copies of wills for safekeeping, but trouble arises when someone dies and the original will is lost.  In Florida, when an original will is known to have existed but can not be located, there is a presumption that the person destroyed the will with the intent to revoke it.  Therefore, a party probating a lost will must present evidence at a hearing to overcome this presumption.  Don’t panic, as it is possible in most cases to overcome this presumption.

 

Florida courts will allow testimony at a hearing from a disinterested witness to prove the execution and contents of a lost will.  If there is an exact copy of the lost original will, the testimony of only one witness to the will execution is required.  However, an unsigned draft of a will does not constitute an exact copy.  If there is no exact copy of a signed will, then the testimony of two disinterested witnesses are required to prove the execution and content of the document.  In every case, a hearing is required in order to satisfy the requirements of Florida Statute 733.207 and relevant Florida case law.

Contact the law firm of Bach & Jacobs, P.A. for an initial consultation.
Babette B. Bach, Esquire, Board Certified Elder Law
Fredric C. Jacobs, Esquire, Board Certified Tax Law
240 S. Pineapple Avenue, Suite 700
Sarasota, FL 34236
(941) 906-1231
www.bachjacobs.com

February 8, 2012
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Litigation with Babette and Fred (VIDEO)

By Elder Law, Probate

 

Babette: Both Fred and I have litigation experience, and unfortunately in elder law, even with good planning, sometimes you end up in court. Fred: The typical case is a gentleman passes away, and leaves substantially all of his assets to a person or persons other than his natural beneficiaries, and by natural beneficiaries we mean typically the children of the decedent. Many times, people, particularly elderly people, come under the influence of persons and are induced to leave portions of their estate to those persons. In many cases the elderly person did not fully realize what he or she was doing. In a typical case, someone will come into the office and say, “my goodness, this is my dad’s will. I hardly know this person! how could he have possibly left so much to so-and-so? Can you do anything about this?” And at that point, Babette takes over.
Babette: On the other hand, there are times when an elderly person knows exactly what they’re doing, and they intentionally disinherit an heir. We can get very involved in preparing that case for litigation, even while the testator is alive and preparing the will, because we anticipate that it might be contested at a later date and so we develop the case right then and there on the spot. Unfortunately, that’s not always the case, but we believe in a person’s right to leave their estate to who they choose. That is one of the liberties we have in the United States and in the Florida Constitution. In protecting the elderly that means protecting their freedom of choice. Not every state is the same.
Fred: In those types of situations, we will frequently videotape the person who is making the will. We will record the signing of the will, we will ask that person questions like, “who you are? Do you understand what you’re doing? Who are your beneficiaries? What is the nature and extent of your financial assets? How come you’re not leaving so much to so-and-so and how come you’re making a bequest to so-and-so?”
In other words, we have it all on tape, and when the person dies and if there is litigation, the judge and the jury and everyone else can see the person who prepared the will while they were alive, and can make a determination of whether they feel that person was competent, and they also hear right out of the person’s own mouth why they are or are not doing a certain thing with regard to the disposition of their assets. We have found that that videotaping can be very persuasive in a court of law.

August 8, 2009
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