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Probate

My Will was drawn up in another state. Is it still valid in Florida?

By Estate Planning, Probate

If your Will was valid in the state where it was written, it should be valid in Florida, with some exceptions. However, property laws do vary from state to state. For instance, one significant distinction between states when it comes to property law is whether they are considered “common law” states or “community property” states. In the former, the property of each spouse belongs to each individually – in the latter, the property is shared.

Another important thing to consider: not every state accepts all types of Wills as valid. For instance, Florida does not recognize either “nuncupative” or “holographic” Wills. Nuncupative Wills are spoken to two witnesses and then written down by those witnesses; holographic Wills are written in the handwriting of the deceased without witnesses.

If you have recently moved to Florida and want to make sure your Will is valid in Florida, the lawyers at Bach, Jacobs & Byrne, P.A. are happy to help. Give us a call at 941-906-1231.

November 15, 2018
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How can probate litigation be avoided?

By Estate Planning, Probate

Depending on the situation, there are steps that you can take to mitigate and even avoid the stresses of probate litigation.

In probate cases, advance communication can make the process of probate administration easier on all parties involved. Family members may sit down before the death of a loved one and have a conversation about the distribution of assets.

Open and honest communication can help proactively avoid litigation over disputes between fiduciaries and conflicts between beneficiaries and fiduciaries, as well. Having your estate plan documents in order is also important. For help creating your will or trust or to review your existing documents, please call (941) 906-1231 to set up an appointment with the lawyers at Bach, Jacobs & Byrne, P.A.

September 28, 2018
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What is the difference between “per stirpes” distribution and “per capita” distribution?

By Estate Planning, Probate

In Latin, “per stirpes” means “by class/stock,” and “per capita” means “by head.” In the process of estate planning and the administration of a will, these terms play a key role.

The best way to illustrate how these terms come into play is with a couple examples. Let’s say Dusty is the testator of a will. Dusty has four children: Ruby, Pearl, Jade, and Sapphire. Ruby has one son (George), and Pearl has two sons (John and Paul). Neither Jade nor Sapphire have any children.

If Dusty’s will specifies that his assets are to be distributed to his descendants “per stirpes”, his assets will pass on with top priority to the class of living beneficiaries closest in relation to him – in this case, his four daughters. Ruby, Pearl, Jade, and Sapphire each receive 1/4 of the assets. Neither George, nor John, nor Paul receives a share.

But, let’s say that Pearl has predeceased Dusty. If the bequest to Pearl was “per stirpes”, then John and Paul will then each receive 1/8 of the assets of Dusty. In the scenario where Ruby predeceases Dusty, George receives Ruby’s quarter share of Dusty’s assets.

Now, let’s say that Dusty’s will specifies that his assets are to be distributed to his descendants “per capita.” In that scenario, when Dusty dies, his assets will be split equally among all surviving descendants. Thus, Ruby, Pearl, Jade, Sapphire, George, John, and Paul will each receive 1/7 of Dusty’s assets. If Ruby and John have predeceased Dusty, then the remaining descendants each receive 1/5 of Dusty’s assets.

September 18, 2018
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What does “TBE” stand for in real estate?

By Asset Protection Planning, Estate Planning, Probate, Real Estate

“TBE” stands for “Tenancy by Entirety,” which is a special form of joint ownership between spouses wherein property is not held individually, but collectively by the married couple. Thus, following the death of one spouse, the assets held as TBE do not have to go through probate – instead, they all transfer by operation of law to the other spouse. Furthermore, creditors cannot access this property unless both spouses are liable.

However, there are certain caveats to holding TBE property. First and foremost, one must be legally married to be eligible for a TBE. It is also necessary to remember that assets held before marriage do not automatically transfer to TBE status – this property must be formally identified as TBE property. Finally, it is important to check bank signature cards for any bank accounts opened with a spouse: though Florida law presumes accounts opened at the same time by spouses to have TBE status, bank officers can sometimes register the accounts as “Joint Tenants with Right of Survivorship.”

The attorneys at Bach, Jacobs & Byrne, P.A. will review the titling of your and your spouse’s assets as part of their comprehensive estate planning. In addition, Fred Jacobs and Sean Byrne are authorized real estate title and closing agents and can assist clients with the purchase, sale, or reconveyance of real property. Call to schedule an appointment at (941) 906-1231.

September 6, 2018
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Are different claims against the estate prioritized differently?

By Asset Protection Planning, Probate

Yes. Florida’s Probate Code establishes the exact order of priority when it comes to repaying claims against the estate. Costs of administration (i.e. expenses incurred in the process of administering the probate estate of the decedent) are given first priority. These include personal representative and attorney fees.

Funeral and burial expenses follow, as a Class 2 creditor, with taxes owed as a Class 3 priority creditor.

The prioritization of creditor classes becomes very important in insolvent estates. With the exception of certain exempt assets, creditors are generally paid in an estate proceeding before beneficiaries receive their inheritances.

September 4, 2018
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“It’s All Greek to Me”: Lex Loci Rei Sitae

By Probate

In this series of blog posts, we define esoteric legal terms and explain how they are used in law.

“Lex loci rei sitae” is a Latin phrase literally meaning, “the law where the property is situated.” This term is applied by the Florida court system to the process of ancillary probate administration, which is necessitated by the death of a nonresident who has died leaving assets in Florida. Even though the state where the decedent lived at the time of his/her death might have different probate laws than us, it is the Florida Probate Code which governs the distribution of the assets, such as real estate, left in Florida.

Florida Statute §734.102 specifies what happens in an ancillary probate. “If a nonresident of this state dies leaving assets in this state, credits due from residents in this state, or liens on property in this state, a personal representative specifically designated in the decedent’s will to administer the Florida property shall be entitled to have ancillary letters issued, if qualified to act in Florida.” If the decedent died intestate (without leaving a will), standard rules for appointing a personal representative of the estate apply.

If you are the personal representative for an estate requiring ancillary probate administration, the lawyers at Bach, Jacobs & Byrne, P.A. are glad to help you. Call us now at (941) 906-1231 to schedule an appointment to discuss your options.

August 23, 2018
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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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