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Estate Planning

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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What is a Durable Power of Attorney?

By Elder Law, Estate Planning

A Durable Power of Attorney, unlike a limited power of attorney or non-durable power of attorney, may remain in effect after incapacitation.  This can be an important document to have in place if you wish for your designated power of attorney to continue handling your financial or legal matters even if you are ever deemed incapacitated later in life.  The powers granted to your durable power of attorney can be laid out by you and can be limited or more general.

In Florida, a Durable Power of Attorney can be a way to avoid guardianship during incapacitation.  If proper estate planning and health care documents are put into place before incapacitation, courts may not need to appoint a guardian because the person you choose as your power of attorney (aka your attorney-in-fact) can act on your behalf in financial and sometimes medical matters.  This is an example of what Florida law considers a possible “lesser restrictive alternative” to guardianship.

If you are looking to set up or review your estate planning documents, contact one of our experienced attorneys at (941) 906-1231.

December 22, 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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What powers will my Power of Attorney have?

By Asset Protection Planning, Elder Law, Estate Planning

The powers granted to your power of attorney depend on the type of power of attorney that you set up during estate planning.  Some different powers of attorney include:

  • A limited power of attorney who can only perform certain actions which you specify such as selling your house.
  • A general power of attorney who can perform many actions which you outline such as making medical or business decisions.
  • A durable power of attorney who, unlike the two types of power of attorney described above, remains effective after incapacitation.

Designating a power of attorney, and especially a durable power of attorney, is an essential part of proper estate planning.  If you would like to learn more about how you can designate a power of attorney, what type you should choose, and who you should appoint, please contact us at (941) 906-1231.

November 27, 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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Should I amend or restate my current trust?

By Asset Protection Planning, Estate Planning

Typically, to ensure that your trust is reflective of the most up to date legislation and that your desires will be honored, it is often recommended that a trust be restated if you are seeking significant modifications.  However, a simple “amendment” rather than full “restatement” may be more appropriate if you are returning to the same attorney for revisions who originally drafted it, the original trust is less than a few years old, and the changes you wish to make are minimal.

To have a Board Certified attorney review your current trust or find out what estate planning practices would best meet your individual needs, call our office today at (941) 906-1231.  Bach& Jacobs, P.A. represents clients throughout Florida, especially in Sarasota County and Manatee County.

November 20, 2015
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