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Probate

How is the Internal Revenue Service (IRS) involved in probate?

By Probate, Tax Law

It is the duty of the personal representative of an estate to oversee the repayment of debts owed by the decedent as well as to submit the final tax returns for the decedent. It is necessary for the personal representative to complete a final federal individual income tax return (Form 1040), being sure to make note of all income up to date of death as well as any credits or deductions to which the decedent is entitled. Then, the personal representative may need to file Form 1041, the U.S. Income Tax Return for the Estate. For federal gift taxes, Form 709 may be filed; Form 706 is the return filed for the federal estate tax, if it is required.

If the decedent has not kept up to date with his/her tax returns, it is up to the personal representative to pay off the tax returns from previous years from assets of the estate. A personal representative may verify the tax return history of a decedent by submitting Form 4506-T, Request for Transcript of Tax Return.

If you are a personal representative in need of probate assistance or wish to evaluate whether a probate proceeding is necessary to administer an estate, please call the attorneys at Bach, Jacobs & Byrne, P.A. at (941) 906-1231 to schedule a consultation. Attorney Fred Jacobs is a Florida Board Certified Tax Lawyer who can also assist you with the preparation and filing of an estates tax return.

March 15, 2019
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In probate, what happens if the available assets are insufficient to pay off all claims?

By Probate

During a probate process, the personal representative of the estate has to distribute the assets of the decedent according to classes specified by the Florida Probate Code. First, the Class 1 expenses are paid off: the costs of probate administration, the compensation of the personal representative and his/her attorneys, etc. Class 2 expenses – funeral, internment, and grave marker costs – follow, with debts and taxes as Class 3. Final-illness medical expenses constitute Class 4, family allowance makes up Class 5, and other costs comprise the final classes.

When there are not enough assets in an estate to pay each class of expenses in full, the assets received by each class must be abated. The order for abatement of assets received is presented in the Florida Probate Code.

If you have questions about the consequences of a potentially insufficient estate, you should consult with an attorney experienced in trusts & estates. The attorneys at Bach, Jacobs & Byrne, P.A. are seasoned probate and estate attorneys who can advise you about your options. Call (941) 906-1231 to set up an appointment.

March 11, 2019
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How can I file a wrongful death claim?

By Elder Law, Probate

Florida Statute §768.19 states:

When the death of a person is caused by the wrongful act, negligence, default, or breach of contract or warranty of any person, and the event would have entitled the person injured to maintain an action and recover damages if death had not ensued, the person that would have been liable in damages if death had not ensued shall be liable for damages as specified in this act notwithstanding the death of the person injured.

A wrongful death lawsuit may be filed by the personal representative of the decedent’s estate within four years of his/her death. Any spouse, child, parent, or dependent blood relative of the decedent may ask the personal representative to file the wrongful death claim on their behalf. Examples of incidents that can result in wrongful death include:

-Automobile accidents

-Medical malpractice

-Defective products

-Workplace accidents

-Intentional criminal actions

Typically, wrongful death cases are pursued by personal injury attorneys. However, because of the probate aspects of such cases, retention of a probate attorney is also necessary. If you are a personal representative of an estate, or if you believe your loved one has recently been the victim of wrongful death, the attorneys at Bach, Jacobs & Byrne, P.A. are skilled probate litigators and elder law attorneys who can assist you with the commencement of a probate proceeding to pursue a lawsuit due to wrongful death. Call (941) 906-1231 to schedule an appointment.

March 7, 2019
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What is Florida’s non-claim statute?

By Probate

Florida Statute §733.702 is often referred to as the “non-claim statute.” It sets forth that:

[N]o claim or demand against the decedent’s estate that arose before the death of the decedent; no claim for funeral or burial expenses; no claim for personal property in the possession of the personal representative; and no claim for damages… is binding on the estate, on the personal representative, or on any beneficiary unless filed in the probate proceeding on or before the later of the date that is 3 months after the time of the first publication of the notice to creditors or, as to any creditor required to be served with a copy of the notice to creditors, 30 days after the date of service on the creditor.

In other words, with certain exceptions, any claim against an estate that is not filed within the specific time constraints of the Florida Probate Code is not valid. No formal objection must be filed to bar a claim made after the expiration of the creditor claims period: only fraud, estoppel, or insufficient notice may serve as grounds for special extensions.

The attorneys at Bach, Jacobs & Byrne, P.A. are trained probate litigators and trust & estate attorneys. If you need assistance as a personal representative, or if you would like to review your own estate plan documents, please call us at (941) 906-1231 to schedule a consultation.

March 5, 2019
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What are the benefits of using a corporate trustee?

By Asset Protection Planning, Estate Planning, Probate

The decision of who to name as trustee of your Trust is an important one. An option available to you when making this decision is to designate a corporate trustee, a company that will manage the assets in your trust in place of an individual trustee. Some of the advantages of choosing a corporate trustee include:

-Corporate trustees typically have extensive experience managing Trusts

-Corporate trustees are not as susceptible to emotional influence when managing Trusts as family members might be

-Using a corporate trustee removes the potential for conflict among family members who want to be named individual trustee

-Corporate trustees generally have considerable resources available to them when managing Trusts that individual trustees might lack

That said, there are, of course, several disadvantages to choosing a corporate trustee over an individual one. Examples of these are:

-Corporate trustees are often more expensive than individual trustees

-Corporate trustees might not be as familiar with your exact situation as an individual trustee might be

-Corporate trustees might not account for the emotional ramifications of asset management decisions to the extent that an individual trustee might be

Whether you name a corporate or an individual trustee, it is important to name a successor trustee in the event that the one you named is not able to serve. For help drafting a Trust, or to review an existing Trust, please call the elder law and estate attorneys of Bach, Jacobs & Byrne, P.A. at (941) 906-1231 to set up a consultation.

February 21, 2019
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What are the qualifications to serve as a personal representative?

By Estate Planning, Probate

In Florida, the qualifications to serve as personal representative of an estate, as set forth by the Florida Probate Code, are as follows:

-The personal representative has never been convicted of a felony

-The personal representative is mentally able to perform his/her duties

-The personal representative is physically able to perform his/her duties

-The personal representative is 18 years of age or older

Furthermore, the personal representative must be a Florida resident, unless he/she is a family member within a particular degree of relationship to the decedent.

Are you unsure whether you or the individual you would like to serve as personal representative of your estate is qualified and eligible for appointment under the law? Please contact the elder law and estate attorneys of Bach, Jacobs & Byrne, P.A. at (941) 906-1231 to schedule an appointment to discuss your case.

February 15, 2019
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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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