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Probate

What happens if a beneficiary is responsible for the death of the decedent?

By Probate

These are rare, but this scenario can occur: Florida has a “slayer statute” to address it.  Should a named beneficiary kill the testator, Florida law prohibits the killer from inheriting the gifts left to them in the Will.

Florida law treats the beneficiary responsible for the death of the testator as if he/she had predeceased the decedent – so, the assets left originally to them Will instead go to other beneficiaries.

The slayer statute in Florida, Florida Statute §732.802, specifies this law as it applies to joint tenants and life insurance policy beneficiaries, as well. It also clarifies what happens in the event of an absence of conviction of murder: it is left to the court to decide whether the greater weight of evidence suggests that the killing was intentional and unlawful.

August 9, 2018
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How can I access a deceased loved one’s safety deposit box?

By Probate

Under Florida law, a court order is required to access and remove the contents of a safety deposit box of the deceased, unless the box is jointly owned. This can create a hurdle for the loved ones of the deceased sole owner of the box, especially if the box contains the Last Will and Testament of the deceased.

Florida Statute §655.935 addresses this situation. It provides that, after sufficient evidence of the box owner’s death has been presented, a spouse, parent, or adult descendant can, under the advisement of a bank officer, open the box and remove certain items from it. These items are as follows:

-The person’s Will

-The person’s burial plot deed or burial instructions

-The person’s life insurance policy

The court may name a personal representative of the estate of the deceased after the Will has been admitted to probate, and this representative is, in turn, given greater access to the contents of the box.

 

August 3, 2018
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Can an individual with dementia be found to have sufficient capacity to execute a Will?

By Estate Planning, Probate

Yes, it is possible that a person with dementia may be found to have testamentary capacity, depending on the circumstances surrounding the execution of the Will. Indeed, Florida law presumes that the testator of a Will had the capacity to execute the Will, and it is therefore the burden of any contestant of the Will to prove that the testator was not of sound mind when creating the Will.

Generally, the standard in Florida for testamentary capacity to make a Will or trust is not exactly the same as incapacity in the guardianship context. The case In re Bailey’s Estate defines “sound mind” as, “the ability of the testator `to mentally understand in a general way the nature and extent of the property to be disposed of, and the testator’s relation to those who would naturally claim a substantial benefit from the Will, as well as a general understanding of the practical effect of the Will as executed.” Because individuals suffering from dementia may have periods of lucidity (also known as a “lucid interval”), courts have found that such individuals can be possessing of sound mind at the time when they make their Wills. It is important to note that the only point at which the testator of a Will has to be of sound mind in order to validly execute a Will is the moment at which they create the Will.

Certainly, the validity of a Will made by a person with dementia can be challenged. If the court finds that the testator was diminished in capacity at the time of the Will’s execution, the Will can be invalidated. In addition to estate planning and administering probates and trusts, the attorneys at Bach, Jacobs & Byrne, P.A. are trusted estate litigators who represent clients in challenging (and defending) testamentary documents after the testator’s death.

July 30, 2018
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What is a Will Caveat, and When Should I File One?

By Probate

Essentially, a Will caveat is an objection to a Will. A Will caveat provides an individual with the ability to present evidence that some aspect of a Will makes it legally invalid. Once the caveat is filed, this individual must be allowed to present evidence. If the individual who files the caveat presents information that proves the decedent was not competent or lacked the capacity to make a Will at the time the Will was executed, the Will may be voided. The Will also may be voided if an individual is able to provide information proving that someone was exerting undue influence of the decedent at the time the Will was executed.

July 13, 2018
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How to Correct a Death Certificate in Florida

By Elder Law, Probate

In order to correct a death certificate, you must submit a request to the Bureau of Vital Statistics in Florida. This request must include the following documents: an Application For Amendment To Florida Death Record (DH524), the Affidavit Of Amendment To Certificate Of Death (DH433) and documentary evidence where required. While the Affidavit can be used to correct a range of minor errors, corrections that require additional documentary evidence include: name of deceased (other than a misspelling), date of birth (changed more than three months), citizenship from alien to U.S. citizen and name(s) of parents (other than misspelling).

Suggested source of documentary evidence include: a birth certificate, school record, census record, social security record, passport, driver’s license, employment record, insurance record, medical treatment record and a voting registration record.

If you need assistance or have further inquiries regarding this matter, visit the Bureau of Vital statistics website for Florida.

 

July 6, 2018
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The Two Main Forms of Probate in Florida

By Probate

Probate is defined as the process of proving a Will is valid in court and thereafter administering the estate of the decedent according to the terms of their Will. In Florida, there are two main types of probate: Summary Administration and Formal Administration. In an effort to make the probate process less complex and easier to understand, this blog will break down these two forms of probate.

  • Summary Administration: Summary Administration is often the easiest and least expensive type of probate, but it can only be utilized when an individual’s estate is worth less than $75,000 and there are no unpaid creditors of the decedent. Additionally, if the decedent has been dead for at least two years at the time the probate process is started, then Summary Administration may be employed. If the decedent died with a Will, it will be admitted by the court if it is valid. If the decedent died without having created a Will, the process of intestate succession will apply.

 

  • Formal Administration: Formal Administration involves close supervision by the court of the collection and distribution of the assets in the decedent’s estate and the payment of the decedent’s creditors. Once a probate attorney has been hired and the official filings have been made to the court, a judge will issue letters of administration (an order that authorizes a Personal Representative to act on behalf of an individual’s estate), then the process may begin. Administration of the estate may involve: notifying creditors, collecting assets, collecting debts, identifying the rights of beneficiaries, maintaining assets, processing and paying creditor claims and preparing objections to a claim. When this process is complete, the hired probate attorney will file a petition with the court to close the Estate. Once the estate has officially been closed, the probate process is over.
April 27, 2018
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What is Intestate Succession?

By Estate Planning, Probate

If an individual dies intestate, it means that they passed away without having created a Will or estate plan. When someone dies without a Will or estate plan, their property passes into “intestate succession”. This means that state law determines who will get the assets of that person’s estate, as there is no Will to decide what should go to whom. In Florida, if you have children but no spouse, your children will inherit everything. If, on the other hand, you have a spouse but do not have children, your spouse will inherit everything. If you have both a spouse and children by that spouse and your spouse has no other descendants, your spouse will inherit everything. If you have a spouse and descendants from you and that spouse, but the spouse has descendants from another relationship, your spouse will inherit half of your intestate property and your children will inherit the other half. If you have a spouse and descendants from you and someone other than that spouse, the same principle applies and your spouse will inherit half of your intestate property while your descendants will inherit the other half. If you die without a spouse or descendants, your parents inherit everything. If you die with siblings but no spouse, descendants or parents, your siblings inherit everything. If you do not leave a Will or estate plan, then your estate will become property of the state only if you do not have a spouse, children, grandchildren, parents, grandparents, siblings, nieces or nephews, aunts or uncles, cousins, or great aunts or uncles at the time of your death.

April 20, 2018
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What Inheritance Rights Does My Adopted Child Have?

By Estate Planning, Probate

Typically, adopted children have the same legal right to inherit assets from their adoptive parents as biological children do. When a child is adopted, their legal ties to their biological parents are severed. This means that they have inheritance rights with their adoptive parents, but not with their birth parents.

Adopted children have the right to be included in general references to “my children” in a Will. They may also have the right to receive property if they are accidentally or unintentionally left out of a Will. For example, if a Will had not been updates since before the adoption of a child, then that adopted child still has rights to a certain portion of the estate. An adopted child also has the right to receive property in intestate succession, meaning that, if a child’s adoptive parents die without a Will, then the child has the same right to receive a certain portion of the adoptive parents’ property as a biological child would.

Just like with a biological child, you can disinherit an adopted child from your Will, but if you choose to do so you should state this explicitly.

To learn more about this matter, contact our office at 941-906-1231 to schedule an appointment with one of our attorneys.

 

April 6, 2018
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Disposition of Personal Property without Administration

By Estate Planning, Probate

In some cases, individuals are able to complete a process referred to as Disposition of Personal Property Without Administration. You can refer to the 2017 Florida Statute (Statute 735.301) that addresses Disposition Without Administration to determine eligibility for this process. This statute states that:

1) No administration shall be required or formal proceedings instituted upon the estate of a decedent leaving only personal property exempt under the provisions of s. 732.402, personal property exempt from the claims of creditors under the Constitution of Florida, and nonexempt personal property the value of which does not exceed the sum of the amount of preferred funeral expenses and reasonable and necessary medical and hospital expenses of the last 60 days of the last illness.

2) Upon informal application by affidavit, letter, or otherwise by any interested party, and if the court is satisfied that subsection (1) is applicable, the court, by letter or other writing under the seal of the court, may authorize the payment, transfer, or disposition of the personal property, tangible or intangible, belonging to the decedent to those persons entitled.

3) Any person, firm, or corporation paying, delivering, or transferring property under the authorization shall be forever discharged from liability thereon.

To obtain a Disposition of Personal Property Without Administration, completion of the following forms is required:

  • Disposition without Administration Petition (3 pages, notarized)
  • A certified copy of the death certificate
  • Copies of medical and hospital bills for the last 60 days of illness
  • Copy of paid funeral bill
  • Copy or copies of documents that show the asset you are attempting to transfer to you (ex: bank statements, stock certificates, insurance policies, etc.)
  • Signed and notarized consent from all heirs
  • Original Last Will and Testament of the decedent (provided one exists)If you qualify for this process or would like more information, the Sarasota County Clerk’s website has directions regarding how to apply and provides the necessary forms.
March 27, 2018
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The Basic Steps of Probate in Florida

By Probate

Probate is the legal process of proving that a Will is valid in court and administering the estate of the decedent according to the terms of their Will. If you are the personal representative of an estate, probate can become a complex and overwhelming matter. In Florida, the probate process can be broken down into four fairly simple steps. These steps will help you acquire a better understanding of how the probate process works and provide guidelines to follow that will help you fulfill your various duties.

Step 1: File a petition and give notice to the heirs and beneficiaries

File a petition with the probate court. You will either need to admit the Will and appoint the personal representative or, if there is no Will, appoint an administrator for the estate. In some situations, you will need to provide notice of the court hearing to all interested parties, which is usually the beneficiaries and heirs.

Step 2: Give notice to all creditors                                    

Following appointment by the court, the personal representative must give written notice to all creditors of the estate that indicates the date by which claims must be submitted. A notice will need to be filed publically to notify any unknown creditors, which can be done through the newspaper. Then, the creditors must file a valid claim with the court in order to get paid.

Step 3: Pay all debts, including taxes and funeral expenses

As the personal representative, you need to ensure that all funeral bills and final expenses have been paid. Additionally, determine which creditors’ claims are legitimate and pay those that are.

Step 4: Ask for permission to transfer remaining assets to beneficiaries

Once the creditor waiting period is over and all bills are paid, you can petition the court for the authorization to transfer assets to the beneficiaries indicated in the decedent’s Will and then close or discharge the probate proceeding.

If you need legal advice regarding the probate process, please contact our office at: 941-906-1232 to schedule an appointment with one of our attorneys.

February 27, 2018
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