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Probate

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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“It’s All Greek to Me”: Residue of an Estate

By Estate Planning, Probate

It would be cumbersome for a Will to specifically devise every single thing a person has ever bought or owned. So, the residue of the estate refers to all the assets not expressly left to a beneficiary.

The residuary provision in a Will or Trust typically deals with these assets. These remaining assets can be left to a certain person or people, or they can be designated to be distributed either per stirpes or per capita among a group. Whatever the case, it is vital to provide for the residue of the estate in any Will.

For help making your Will and other estate plan documents, call (941) 906-1231 to schedule an appointment with the attorneys at Bach, Jacobs & Byrne, P.A.

December 7, 2018
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What is an “in terrorem” clause in a Will or Trust?

By Estate Planning, Probate

Literally meaning “in fear”, an “in terrorem” clause acts as a sort of threat: if anyone challenges the legality of the Will or of any part of the Will, he/she will be disinherited. Though there are many potential reasons why a client would include such a clause (also referred to as a “no contest” clause), one common one is to promote family harmony and mitigate potential fighting resulting from a legal battle following the death of the testator.

However, Florida law does not allow for the enforcement of in terrorem or “penalty clauses”, as explicitly stated in Florida Statute §732.517. If you need representation in a Will challenge or in defending testamentary documents, the attorneys at Bach, Jacobs & Byrne, P.A. are here to help. Call now at (941) 906-1231 to set up an appointment to discuss your case.

November 29, 2018
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What happens to the Durable Power of Attorney when someone dies?

By Asset Protection Planning, Estate Planning, Probate

A Power of Attorney is described as “durable” because it continues to be effective until and after the point at which a given client becomes incapacitated. However, the Durable Power of Attorney is not effective after that client (known as “the principal”) has died.

According to Florida Statute §709.1209, a Durable Power of Attorney is terminated in the following cases:

-The principal dies

-The principal revokes the Power of Attorney

-The Power of Attorney states that it terminates at a certain point

-The purpose of the Power of Attorney is accomplished

Even if a Durable Power of Attorney document states that it shall continue after the principal has died, the Power of Attorney will be terminated regardless. Only the personal representative of the estate has the authority to administer the assets of the deceased in the probate process.

If you have questions regarding the probate process and the estate of your loved one, please call the attorneys at Bach, Jacobs & Byrne, P.A. at (941) 906-1231.

November 23, 2018
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When can trust and estate litigation occur?

By Guardianship, Probate

Though most matters in probate court go unchallenged, certain situations can arise which necessitate probate, trust, or guardianship litigation. Some common such scenarios include, but are not limited to, the following:

-A will is challenged due to a question of the competence of the testator

-There is a dispute over the way a will/trust is worded or structured

-The installation of a guardianship is being contested

-A trustee is attempting to modify or terminate a trust

-A beneficiary is suing a fiduciary for a breach of their duty in administering the probate or trust

If you are in a situation involving probate, trust, or guardianship litigation, call the lawyers at Bach, Jacobs & Byrne, P.A. at (941) 906-1231 to set up an appointment to discuss your options.

November 19, 2018
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