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Probate

Estate Planning with a Non-Citizen Spouse

By Estate Planning, Probate, Tax Law

Careful estate planning is essential if your spouse is a non-citizen as deductions or tax exemptions can be difficult for them to claim.  One way to help a non-citizen spouse claim marital deductions for estate taxes is to set up a Qualifying Domestic Trust (QDOT).  After their spouse dies, the non-citizen will receive benefits from the QDOT trust and they may leave any remaining assets to their beneficiaries.  The benefits the spouse would receive from the QDOT trust would be subject to income taxes but not estate taxes.

To discuss estate planning for you and your non-citizen spouse, contact our office at (941) 906-1231 to speak with an experienced estate planning attorney who will help you distribute your assets as you desire while minimizing tax burdens as much as possible.

January 5, 2016
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What is ancillary probate?

By Elder Law, Estate Planning, Probate

Ancillary probate is required when a decedent was the sole owner of property in a different state from where they lived at the time of death.  If the decedent had probate assets in their home state at the time of their death, the real estate law requires that two probate proceedings occur in this case – one to distribute the decedent’s assets which originates in the state in which they lived and a separate proceeding to distribute the property originating in the state in which their property is located.

If an estate you are handling involves real property in Florida that may require ancillary probate, contact one of our attorneys experienced in handling ancillary probate at (941) 906-1231.  Additionally, if you are looking to avoid ancillary probate our attorneys can help you create estate planning documents such as revocable living trusts or remainder deeds so ancillary probate will not be necessary.

December 29, 2015
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What is a Personal Representative?

By Elder Law, Estate Planning, Probate

In Florida, a personal representative is appointed to administer a person’s estate after their death.  Many other states call this agent an “executor.”  The personal representative is responsible for gathering the decedent’s assets, publishing a Notice to Creditors, searching for creditors, paying the appropriate taxes associated with the estate, and distributing the assets of the estate to beneficiaries.  A personal representative needs an attorney to help them through the probate process as many legal issues associated with estate administration commonly arise.  It is actually required by the Florida Probate Rules that the PR have legal representation during the probate proceeding except in very limited circumstances.

If you have been named personal representative for an estate and are looking for legal assistance, contact one of our attorneys who are experienced in handling probate proceedings and ancillary probate at (941) 906-1231.

December 25, 2015
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Reopening a Closed Estate

By Elder Law, Probate

A probate estate can be reopened is it is found that the probate was not settled as the decedent desired.  For example, if the estate’s personal representative is found to have made purposeful mistakes in determining heirs, the people who believe they should have been considered heirs can petition to reopen the estate.  Another reason for reopening the estate would be if the testator was not legally competent when they signed the will which was used to settle the estate.

If you have questions about opening or reopening an estate or about your estate planning documents and the exposure they have to being contested, contact our experienced estate planning attorneys today at (941) 906-1231.

December 18, 2015
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Clauses to Include in a Will or Living Trust

By Asset Protection Planning, Elder Law, Estate Planning, Probate

While everyone needs individualized legal advice on what language their estate planning documents should contain, the following are some of the most common and important clauses which should be discussed with the lawyer preparing your will or living trust.

  • Revocation: Previously written wills or trusts should be revoked to avoid the court intervening later to decide which parts of certain documents should be followed.
  • Disaster Clause: This clause helps plan what will happen to your assets if both you and your spouse or main beneficiary die at the same time.
  • Appointment of personal representative: While doing estate planning you will need to name someone as your Personal Representative who will be in charge of distributing the assets in your estate.
  • Guardianship of children: If you have minor children, it is very important that you name someone as their guardian in the event that you or you and your spouse die.
  • Spendthrift Provision: This clause prevents the beneficiary of your assets from transferring their rights to those assets. A spendthrift provision is often used to protect assets from creditors.
  • Total failure: Total failure would occur if all heirs of your estate died before inheriting your assets. This is an extremely rare situation but, without a total failure clause, your estate would go to the government in this circumstance.  A total failure clause allows you to instead designate an organization of your choice for the estate to be given to.

If you have questions about what should be in your estate planning documents to ensure all of your wishes are met and your assets are distributed exactly as you desire, contact our office at (941) 906-1231 to speak with an experienced estate planning attorney.

December 11, 2015
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Are Holographic Wills Valid in Florida?

By Elder Law, Estate Planning, Probate

Holographic wills, or wills which are handwritten and signed by the Testator without any witnesses, are considered invalid by the state of Florida.  Florida law states that at least two witnesses must be present during the signing of a will by the Testator.

Another unconventional type of will is a nuncupative will under which the Testator orally records their estate planning wishes.  Like holographic wills, nuncupative wills are not valid in Florida.

To consult with an estate planning attorney about how you can create an estate plan which will ensure your assets are distributed as you wish or to have your out-of-state will reviewed for compliance with the Florida Probate Code, contact the law office of Bach & Jacobs, P.A. at (941) 906-1231.

December 1, 2015
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Ensuring your Stepchildren’s Rights to an Inheritance

By Asset Protection Planning, Elder Law, Estate Planning, Probate

            In the state of Florida, stepchildren do not have automatic legal rights to inherit assets from their stepparent.  If you would like your stepchildren to inherit part of your estate, you need to specify that in your estate planning documents such as your will and trust.  Wills must contain specific language identifying stepchildren and including them as beneficiaries.  Generic references to “my children” would not automatically include stepchildren.  Another way to ensure your stepchildren receive part of your estate is to formally adopt them so they would be afforded full legal rights equivalent to those of biological children.  Adopting your stepchildren could help avoid inheritance issues if you do not leave estate planning documents such as a will or trust describing how you want your assets to be dispersed among your blended family.

To set up estate planning documents, contact the office of Bach & Jacobs, P.A. at (941) 906-1231.

November 24, 2015
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Personal Representatives Need Attorneys in Florida Probate Cases

By Elder Law, Probate

If you have been nominated as personal representative in the will of someone who has died, you should hire an attorney to represent you throughout the probate process.  Probate cases can become complicated and you want to assure that as personal representative you do not make mistakes that are costly to beneficiaries and, potentially, you.  Your attorney would represent your interests and not those of the beneficiaries.  In addition, the Florida Probate Rules require that the PR has legal representation, except in rare cases that are exempt from the requirement under the rules.  To speak with attorneys experienced in representing personal representatives in probate court, contact the office of Bach & Jacobs, P.A. at (941) 906-1231.

November 3, 2015
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What to Include in a Letter of Instruction to Your Family about End of Life Wishes

By Estate Planning, Probate

To minimize your family’s level of distress and conflict after your death, consider writing a letter of instruction to ensure they understand and will honor your desires.  This letter is not to replace other estate planning documents but is a helpful tool used to help your loved ones with funeral arrangements and the handling of your personal and financial documents.  The following is a list of items you should remember to include in this letter of instruction to make it as clear as possible.

  • List anyone (including individuals and groups) who you want to be notified of your death. If there is anyone who you do not want to be notified, include this as well.  If you can, include updated contact information.
  • Describe what burial method you would like and indicate whether you have already paid for funeral arrangements. Also describe any specifics about what you want your funeral to look like.
  • Make a list of all financial accounts and contact info for people associated with your accounts and estate planning such as attorneys, financial planners, stockbrokers, etc.
  • If your estate planning documents include donating any of your assets to charity, list relevant contact info for the recipients.
  • Give the location of important personal documents such as birth certificate, marriage certificates, divorce papers, etc. This information should be in a secure location which only certain trusted people, such as the personal representative of your will, can access.
  • State planned arrangements for who should care for your pet and how. Pet trusts can also be set up to provide more structure to pet care.

For help ensuring your estate plan is clear and will allow your assets to be distributed exactly as you desire, contact our office at (941) 906-1231.

October 27, 2015
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How can I give specific belongings to members of my family?

By Asset Protection Planning, Estate Planning, Probate

You may have done estate planning to designate who your major assets, such as homes, vehicles, and life insurance policies, will be passed along to but incorporating smaller personal belongings into your estate plan is also necessary to make sure you are able to choose which beneficiaries will get your collections or items with sentimental or monetary value.

As long as the items you have in mind are tangible personal property, they can be listed along with your desired beneficiary of them on a personal property list that your other estate planning documents mention.  A personal property list is highly flexible as you can change it as you desire without redoing anything else in your estate plan.

Personal property lists can be useful for conveying many items but if the items you have in mind are particularly valuable, either monetarily or emotionally, it may be recommended that you describe who you want these items to be passed to explicitly in your will or trust.  This more formal, less easily modified method is generally more binding and can better prevent conflict among beneficiaries.

If you have further questions or would like help planning for specific items in your estate, contact our office today at (941) 906-1231.

October 20, 2015
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