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Probate administration

My Dead Relative Received a Stimulus Check. Can I keep it?

By Government Benefits, Probate

There have been a number of glitches in sending stimulus payments to Americans under the recently enacted CARES Act, including sending stimulus payments, which are intended to ease the financial stress caused by the Coronavirus, to dead people. Initially, this issue left many unanswered questions for the relatives of the deceased. What should I do with the money? Do I get to keep it? Should it be deposited into an estate account? Should I send it back? However, now, the IRS has issued specific guidance on what to do if you receive a stimulus check for a deceased person.

According to the recently released guidance, the IRS says that a stimulus payment made to someone who died before receiving  should be returned to the government. If the payment was made to a single filer, the entire payment should be returned. If the payment was made to joint filers, and one spouse had not died before the receipt of the payment, only the portion of the payment made on account of the decedent should be returned. This amount will be $1,200.00, unless the joint adjusted gross income exceeded $150,000.00.

Fred Jacobs is a Florida Board Certified Tax Lawyer.  Contact Fred at Bach, Jacobs & Byrne, P.A. to discuss tax planning for you and your family. Call (941) 906-1231 to schedule an appointment.

May 19, 2020
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What is summary administration in Florida?

By Estate Planning, Probate

Summary administration is a form of probate which is generally less time-intensive and less expensive than a full probate. Pursuant to the Florida Probate Code, the following conditions must be met for an estate to qualify for summary administration:

  • The gross value of the probate estate does not exceed $75,000, or
  • The decedent has been dead less than two years

If the Will does not include a direct instruction to conduct a formal probate, a petition with the court may be filed requesting summary administration, if either of the two factors above apply to the situation. This petition can be filed by any beneficiary of the Will or any individual nominated to serve as personal representative in the Will, and it must be signed or joined in by the surviving spouse (if any). If the court accepts the petition, it may order the assets to be immediately distributed to the designated beneficiaries, presuming all creditors have been paid or will be paid.

For guidance through the probate process and for assistance drafting a petition for summary administration, contact the elder law and trust & estate attorneys of Bach, Jacobs & Byrne, P.A. at (941) 906-1231.

July 5, 2019
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What is summary ancillary administration?

By Probate

Summary ancillary administration is a type of ancillary probate in Florida (as a reminder, ancillary probates are generally necessary when a nonresident of Florida dies leaving real property in Florida). As defined in the Florida Probate Code, to qualify for this form of ancillary probate, the following criteria must be met:

  • The decedent had a Will
  • The decedent was not a resident of Florida
  • The decedent died less than two years ago
  • The decedent’s assets have a gross value of no more than $50,000
  • The personal representative was appointed by an out-of-state court
  • The pleadings from the foreign state probate court are available to be filed in a Florida court

In a summary ancillary administration, it is not necessary for a Florida personal representative to be appointed. However, the personal representative from out of state may file the transcript of the original probate proceedings with the Florida circuit court of the county where the decedent’s property remains, and he/she may also publish a notice of administration to all creditors and interested parties of the decedent’s Florida assets.

If you are a personal representative in need of probate guidance, the highly-skilled and experienced attorneys of Bach, Jacobs & Byrne, P.A. are here to assist you. Call us at (941) 906-1231 to set up an appointment.

June 17, 2019
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How do I find out if I am a beneficiary of a Will?

By Probate

After an individual passes away, the personal representative of their estate is appointed by the court. The Florida Probate Code instructs personal representatives to promptly serve Notices of Administration to the decedent’s surviving spouse and any beneficiaries named in the decedent’s Will. This document will include the contact information of the personal representative, the probate case file number, the address of the court in which the proceedings are pending, and a description of the relevant components of the probate process.

The attorneys at Bach, Jacobs & Byrne, P.A. are experienced and highly-skilled trust and estate attorneys who can guide you through the complex probate process. Call us at (941) 906-1231 to set up a consultation.

April 30, 2019
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In probate, what happens if the available assets are insufficient to pay off all claims?

By Probate

During a probate process, the personal representative of the estate has to distribute the assets of the decedent according to classes specified by the Florida Probate Code. First, the Class 1 expenses are paid off: the costs of probate administration, the compensation of the personal representative and his/her attorneys, etc. Class 2 expenses – funeral, internment, and grave marker costs – follow, with debts and taxes as Class 3. Final-illness medical expenses constitute Class 4, family allowance makes up Class 5, and other costs comprise the final classes.

When there are not enough assets in an estate to pay each class of expenses in full, the assets received by each class must be abated. The order for abatement of assets received is presented in the Florida Probate Code.

If you have questions about the consequences of a potentially insufficient estate, you should consult with an attorney experienced in trusts & estates. The attorneys at Bach, Jacobs & Byrne, P.A. are seasoned probate and estate attorneys who can advise you about your options. Call (941) 906-1231 to set up an appointment.

March 11, 2019
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What is Florida’s non-claim statute?

By Probate

Florida Statute §733.702 is often referred to as the “non-claim statute.” It sets forth that:

[N]o claim or demand against the decedent’s estate that arose before the death of the decedent; no claim for funeral or burial expenses; no claim for personal property in the possession of the personal representative; and no claim for damages… is binding on the estate, on the personal representative, or on any beneficiary unless filed in the probate proceeding on or before the later of the date that is 3 months after the time of the first publication of the notice to creditors or, as to any creditor required to be served with a copy of the notice to creditors, 30 days after the date of service on the creditor.

In other words, with certain exceptions, any claim against an estate that is not filed within the specific time constraints of the Florida Probate Code is not valid. No formal objection must be filed to bar a claim made after the expiration of the creditor claims period: only fraud, estoppel, or insufficient notice may serve as grounds for special extensions.

The attorneys at Bach, Jacobs & Byrne, P.A. are trained probate litigators and trust & estate attorneys. If you need assistance as a personal representative, or if you would like to review your own estate plan documents, please call us at (941) 906-1231 to schedule a consultation.

March 5, 2019
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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 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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“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 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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