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Probate

Should I title a car in the name of a Trust?

By Estate Planning, Probate

Though there are exceptions to every rule, generally there are several reasons not to title a vehicle in the name of a Trust. For example:

-If your vehicle is involved in an accident and you get sued, your Trust becomes a party to the lawsuit – this can create significant complications

-Automobile insurers in Florida sometimes refuse to insure vehicles named in Trusts

-A Trust is generally not necessary to transfer a vehicle’s title after death –in some cases, the DMV Handbook allows the Florida Department of Motor Vehicles to accept the death certificate, the Will, the vehicle title, and a transfer fee as sufficient for transferring the vehicle’s title

For antique automobiles, mobile homes, and certain other situations, circumstances may be different. To review your estate plan documents or to get help preparing new ones, the attorneys of Bach, Jacobs & Byrne, P.A. can provide you particularized advice. Call (941) 906-1231 to schedule a consultation.

February 7, 2019
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Can I prevent my beneficiaries from knowing what other beneficiaries are receiving in my Will?

By Estate Planning, Probate

If a testator wants to distribute assets to multiple children in different amounts, he/she might want to prevent each beneficiary from knowing what the others are getting in order to mitigate strife and avoid hurt feelings. However, in Florida, each beneficiary of a Will has the right to acquire a copy of the Will. Even if a beneficiary was only left $1, the Florida Probate Code mandates that he/she still must have access to a copy of the Will in its entirety, after the death of the testator.

However, there are some alternative methods one might pursue to keep the asset distribution private from certain beneficiaries. First, one can leave assets using “Will substitutes,” such as payable-on-death accounts (“POD accounts”). With multiple POD accounts, one can distribute assets to multiple beneficiaries without each knowing the amount the others received. POD assets do not have to go through the probate process, either, so there will be no court record of the asset distribution.

Another option is to leave one’s assets in multiple Trusts, with only certain individuals named in each Trust as beneficiaries. This can be expensive, but it is another way of preventing beneficiaries from knowing the exact amounts each is receiving. As with Wills, the beneficiaries under each Trust are entitled to a copy of the Trust under the Florida Trust Code.

To prepare your estate plan documents with trustworthy and experienced trust and estate attorneys, or to review existing documents, please contact Bach, Jacobs & Byrne, P.A. at (941) 906-1231.

February 5, 2019
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What is the “spendthrift provision” in a Trust?

By Estate Planning, Probate

Florida’s spendthrift provision protects Trustees and beneficiaries from creditors seeking to collect on a beneficiary’s debts and from the beneficiaries themselves, pledging their interest in the Trust as collateral. Essentially, the provision stipulates that no creditor can access the assets in a Trust designated to be distributed to certain beneficiaries, as long as the assets remain in the Trust. However, as soon as the beneficiaries receive their assets from the Trust, the creditors are allowed to seek repayment from them.

For more information about the spendthrift provision, you can look up Florida Statute §736.0502 at www.leg.state.fl.us/Statutes. To review an existing Will or Trust or for help creating one, please contact the attorneys at Bach, Jacobs & Byrne, P.A. at (941) 906-1231.

 

January 22, 2019
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What constitutes undue influence in a Will or Trust contest?

By Estate Planning, Probate

The Florida Supreme Court case which has set the standard for determining undue influence in Will disputes is the seminal case of In re: Estate of Carpenter, 253 So.2d 697 (Fla. 1971), which held that: “It is established in Florida that if a substantial beneficiary under a will occupies a confidential relationship with the testator and is active in procuring the contested will, the presumption of undue influence arises.”

In terms of proving that that a beneficiary was active in procuring the Will, the Carpenter court lists seven criteria which may be used in doing so:

  1. The beneficiary was present at the execution of the Will
  2. The beneficiary was present on occasions when the testator expressed a desire to make a Will
  3. The beneficiary recommended that an attorney draw the Will
  4. The beneficiary knew the contents of the Will prior to execution
  5. The beneficiary gave preparation instructions to the attorney drawing the Will
  6. The beneficiary secured the witnesses to the Will
  7. The beneficiary kept the Will in his/her possession after execution

The attorneys at Bach, Jacobs & Byrne, P.A. are trained Trust and estate litigators and elder law attorneys. If you think the Will or Trust of a loved one has been impacted by undue influence, call us today at (941) 906-1231 to set up an appointment to discuss your case.

January 18, 2019
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Why does probate take so long?

By Estate Planning, Probate

In Florida, the formal probate process, when not drawn out by disputed claims or other complications, generally takes at least four months. Though this may seem long, our system is more concise and takes less time than many other states.

In any probate process, creditors must be notified of the decedent’s death and given time to file claims on the probate estate. Florida law provides three months for the notification of any and all possible creditors – this is why the formal probate process in Florida can never take less than three months. Summary probate administrations for small estates are an exception.

The attorneys at Bach, Jacobs & Byrne, P.A. represent personal representatives in the administrations of probate estates, from start to finish, whether they are quick and simple or complicated and drawn-out. Contact us at 941-906-1231 to schedule an appointment.

January 14, 2019
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What happens if a beneficiary predeceases the testator?

By Probate

As is the answer with many legal questions, the answer here is: it depends. When a person named as a beneficiary of a Will dies before the person who signed the Will, you should review the terms of the devise to see if alternate beneficiaries are named.

When alternate beneficiaries are not named, the gift is said to have “lapsed.” If the bequest lapses, the gift can instead be passed to other beneficiaries of the Will.

If one of your intended beneficiaries has passed away, it may be time to review your estate plan. Call Bach, Jacobs & Byrne, P.A. at 941-906-1231 to set up an appointment to create or review your existing estate plan documents.

January 8, 2019
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What is a “pour-over” Will?

By Asset Protection Planning, Estate Planning, Probate

A “pour-over” Will is usually created by individuals who hold most, if not all, of their assets in a Trust. The reason one might maintain such a document is to account for overlooked assets in the estate planning process – if one wishes for all his/her assets to be held by the Trust after death and inadvertently forgot to transfer some assets to the Trust, the pour-over Will directs those assets to be transferred to the Trust.

The assets in a pour-over Will still have to go through the probate process (unlike the assets already in the Trust). However, it is still wise to have a pour-over Will, as it will avoid intestate probate and provide clarity and direction with regard to your estate plan.

Do you need to make a pour-over Will? Do you need to review your existing estate plan to make sure it aligns with all your wishes? Contact Bach, Jacobs & Byrne, P.A. today at (941) 906-1231 to set up an appointment.

January 4, 2019
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What is “electing against the will”, or “taking an elective share”?

By Estate Planning, Probate

“Electing against the will” refers to the right of a spouse to take a certain share of their deceased spouse’s inheritance. It can be utilized if the elective share is greater in the long run than the stated benefits of the spouse’s will.

The right to an elective share has its origins in England, where common law mandated that a certain portion of the decedent’s estate be reserved for the spouse, so as to prevent that spouse from becoming the burden of the community. In many American states today, the elective share ranges from 1/3 to 1/2 of the decedent’s estate. In Florida, it is 30% of the elective estate, as defined in the Florida Probate Code.

December 24, 2018
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What happens if the personal representative nominated by a decedent is found to be unqualified for the role?

By Estate Planning, Probate

The Florida Probate Code lists the order of preference for the selection of personal representatives in both estates where the deceased left a Will and where the decedent died without a Will. In an estate with a Will (a “testate” estate), if the individuals nominated under the Will are not eligible, then the “person selected by a majority in interest of the persons entitled to the estate” takes precedence. If this person, too, is unqualified, one of the Will’s devisees may be appointed as the next in preference.

The attorneys at Bach, Jacobs & Byrne, P.A. are experienced elder law and estate attorneys who can advise you in the process of naming your personal representative. Call us at (941) 906-1231 to schedule an appointment.

December 21, 2018
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How can I protect my pet when I die?

By Estate Planning, Probate

One can include specific instructions for the transfer of care for one’s pet in a Last Will and Testament or in a revocable living Trust. Specific amounts of money can be devised to beneficiaries entrusted with caring for one’s pet after death. While one cannot leave assets directly to their pet, one can leave assets to a human beneficiary with directions to exclusively use those assets in caring for the pet. It can be a good idea to name alternate pet caregivers in one’s Will, as well.

Because a Will only applies to the care for the pet following death, the revocable living Trust is an option for scenarios wherein a pet owner has become incapacitated or must move to a long-term care facility.

The attorneys at Bach, Jacobs & Byrne, P.A. are experienced and compassionate trust and estates attorneys who can help you prepare your estate plan documents or review your existing ones, with a special emphasis on the people (and critters) most important to you. Call us today at (941) 906-1231.

 

December 13, 2018
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