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Probate

How is a Personal Representative Compensated?

By Probate

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.

February 2, 2016
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No-Contest Clauses in Florida Wills

By Elder Law, Estate Planning, Probate

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.

January 29, 2016
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Objecting to a Will

By Probate

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.

January 26, 2016
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Missing Will

By Elder Law, Estate Planning, Probate

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.

January 15, 2016
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Estate Planning with Vacation Homes

By Estate Planning, Probate

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.

January 8, 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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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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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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Probate and Alternative Dispute Resolution

By Elder Law, Estate Planning, Probate

            Probate disputes can become time consuming and expensive processes which is why many prefer to settle outside of court through arbitration or mediation as alternatives to a full court proceeding.  These processes are less formal than court proceedings and, consequently, are also more flexible.  Through arbitration, both parties agree to adhere to the decision made by a third party arbitrator who usually specializes in certain types of cases.  In mediation, a third party works to propose a solution which both parties will agree to. Both processes allow each side to present their personal view of the case and can lead to creative solutions compared to standard court decisions.

October 9, 2015
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Why could a will be contested in Florida?

By Elder Law, Estate Planning, Probate

Out of several circumstances under which a will could be contested in Florida, the simplest is the will was not drafted using the proper formalities.  For example, if a will is not witnessed as per state requirements, it can be contested and thrown out.

Other grounds for contesting a will include:

  • If the writer is found to have lacked capacity at the time of its drafting.
  • Due to the testator being manipulated or exploited, especially during old age if “undue influence” occurs.
  • if the author of the will suffers “insane delusions” which cause them to change the beneficiaries of the will, such as if a person believes their husband has left them and decides to remove the husband from their will when in fact the husband visits his spouse every day.
  • If fraudulent activity occurs. For example, if someone lies about other family members or beneficiaries and these lies cause the slandered family member to be taken out of a will.

Wills must be contested very quickly, generally within 90 days of when the Personal Representative files and serves the Notice of Administration.  It is also possible for other testamentary documents besides wills to be contested if the situations listed above apply.

If you have questions about whether a will can be contested or to ensure your estate planning documents will not be contested, contact our office at (941) 906-1231 to speak to an experienced probate attorney.

September 1, 2015
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