No, a testamentary trust is usually created by a person’s will and has assets transferred to it during the probate process. These assets are then distributed by the trustee according to the terms of the trust. One advantage to a testamentary trust is that its administration would be carefully overseen by the courts. However, this type of trust does not avoid the process of probate which can be costly in terms of time and money. For advice on what kind of estate planning documents would best serve your individual needs, contact one of our experienced estate planning attorneys at (941) 906-1231.
If your spouse passes away and you owned real property with your spouse as tenant by the entirety, you need to clear the title to your real estate so it is owned by you alone as the surviving spouse through the following steps.
- Record a copy of the death certificate with the Clerk of Court in the county where the property is located.
- File an “Affidavit of Continuous Marriage” with the County Clerk. This form proves that your marriage was valid through your spouse’s death.
- File an “Affidavit of No Florida Estate Tax” (or DR-312 form). A copy of this form is linked below.
Affidavit of No Florida Estate Tax
Following these steps to clear the title to your property will ensure that there are no delays when you later wish to sell the property.
Bach & Jacobs, P.A. assists clients with the transfer of jointly owned real property after a joint owner dies and can prepare the necessary Affidavits and guide you through the process to properly transfer the title.
In Florida, a personal representative is compensated either in accordance with the desires of the decedent as laid out in their estate planning documents or based on the presumed reasonable fees established by the Florida Statutes. The commission is 3% for the first $1 million in the estate, 2.5% for all above $1 million and not exceeding $5 million, 2% for all above $5 million and not exceeding $10 million, 1.5% for all above $10 million. Additional compensation may be due if the personal representative engages in duties such as selling a home, being involved in litigation, being involved in IRS proceedings, or other extraordinary duties.
If you are personal representative of an estate, you will need an attorney to represent your interests and guide you through the probate process. Contact our office at (941) 906-1231 to speak with an attorney with experience in probate administration.
Florida law does not recognize “no-contest” clauses written into wills or trusts, which means they are unenforceable in Florida courts. No-contest clauses are written to dissuade beneficiaries from challenging the will by threating that anyone who contests the will is no longer entitled to any assets from the estate. Even if a Florida will contains a no-contest clause, it carries no weight in a courtroom which means a beneficiary may contest a will without jeopardizing their rights to an inheritance.
If you are looking to set up estate planning documents to ensure your assets are distributed as you wish, contact one of our experienced estate planning attorneys at (941) 906-1231.
After you are served a notice of administration regarding a will, you have 3 months to contest the contents or validity of the will in the state of Florida. The objections to a will can be regarding the creator’s capacity at the time of signing, undue influence in the will’s signing, possible fraud, etc.
If you have questions about objecting to a will, contact one of our experienced estate planning and probate attorneys at (941) 906-1231.
After a person dies, the original copy of their will must be submitted to the court. If the original will cannot be found, the Florida Probate court requires that the contents of the will must be proven by providing the court with either: 1) two disinterested witnesses who testify to the contents of the will, or 2) a copy of the will and one disinterested witness who testifies to the contents of the will.
In some cases, courts have accepted copies of wills from the decedent’s attorney but each situation involving a lost will should be examined individually to determine the best course of action.
If you have questions about a lost will in Florida or your options with regard to probate and trust administration, contact one of our experienced probate and estate planning attorneys at (941) 906-1231.
When putting together your estate plan, consider how laws in different states or countries will apply as you pass your vacation home property to your beneficiaries. If you own real property in a state other than the state you live in at the time of your death, ancillary probate may be required to distribute this asset. Ancillary probate is a secondary probate proceeding which is initiated in addition to the regular probate proceeding which distributes your assets in the state in which you reside. Probate can be lengthy and expensive but it can also be avoided through careful estate planning. With help from an experienced attorney, you can pass your vacation homes onto your beneficiaries without having the property go through ancillary probate. To speak with an experienced estate planning attorney about probate avoidance today, contact our office at (941) 906-1231.
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.
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.
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.
