Probate Court

Serving Southwest Florida

Helping clients plan for their family's future, by creating an efficient, thoughtful and comprehensive estate plan that preserves their legacy and gives them peace of mind.

Living Trusts

Nj.com’s recent article entitled “Will a living trust save time and money when settling an estate?” explains that, although probate avoidance is often thought of as a reason to have a living trust, generally speaking, many people who have living trusts also have what are known as “pour-over wills.”

The reason? Individuals frequently have assets that they have not placed into a living trust, such as tangible personal property. Those are things like furniture and household furnishings, a car, or a small bank account. It may also be necessary to open an estate because of unclaimed funds held by the state, a tax refund or return of insurance premiums.

Pour-over wills typically are written so the estate assets will pour over or pour into the living trust at the death of the person who created the trust.

Living trusts have the benefit of privacy and the elimination of challenges to the estate. A trust can also be used to separate assets acquired before a marriage; or as a vehicle to manage the assets of a person with diminished or lack of capacity, such as a person suffering from dementia.

It’s important to note that financial institutions can freeze up to 50% of the assets in an estate, until a tax waiver is obtained. However, tax waivers aren’t required to transfer legal ownership of trust assets after the death of the person who created the living trust. Therefore, financial institutions can’t similarly freeze up to half of the assets in a trust for that reason.

However, there can also be a few disadvantages to creating a trust. The cost of creating a revocable trust and a pour-over will is more than the cost of preparing just a will.

There may also be expenses involved with transferring assets, such as real property, into a living trust.

The legal fees incurred in administering a probate estate are almost always more than legal fees incurred in administering a trust after the death of the trust maker.

Moreover, the time it takes to settle an estate may be longer than what it takes to distribute trust assets. That is because it may take months to probate a will and obtain a tax waiver.

However, if the individual has relatively few assets that would be subject to probate, the cost of establishing a living trust may be more costly than administering an estate.

Speak with an experienced estate planning attorney about whether a revocable living trust makes sense for your unique circumstances.

Reference: nj.com (Feb. 8, 2021) “Will a living trust save time and money when settling an estate?” 

Avoiding Probate With Ownership

When your goal is avoiding probate, there are three categories of property, and only one requires probate, so it can be accessed when the owner passes away, says njmoneyhelp.com’s recent article entitled “How can we avoid probate for this account?”

First, it’s important to understand that property that passes by operation of law is any asset that’s owned jointly with right of survivorship. These accounts are sometimes labeled as “JTWROS.”

When one co-owner dies, the property passes by law to the surviving co-owner. This is a way of avoiding probate.

Married couples in Florida have a similar ownership known as tenancy by the entireties.  It also has a right of survivorship.

A second category is contract property, which includes life insurance, retirement accounts and any non-retirement accounts that have beneficiaries designated upon death.

These designations supersede or “override” a will and are also a means of avoiding probate, directly passing to the named beneficiary.

These are frequently designated as “POD” (payable on death) or “TOD” (transfer on death).

The third category is everything else. This includes accounts that are owned solely by the person who died with no POD or TOD designation and is usually subject to probate.

A certificate of deposit is a time deposit. It’s a financial product commonly available from banks, thrift institutions and credit unions. Certificates of deposit are different from savings accounts because a CD has a specific, fixed term and usually, a fixed interest rate.

To avoid probate to access a CD or any other account owned by a spouse’s name, you can either make the account jointly owned by husband and wife with right of survivorship. or designate your spouse as a beneficiary upon death.

Either option will succeed in avoiding probate to access that particular account, like a certificate of deposit.

Contact an experienced estate planning attorney with questions about CDs and probate.

Reference: njmoneyhelp.com (June 6, 2019) “How can we avoid probate for this account?”

Letter of Last Instruction

It is important to know that a Letter of Last Instruction does not pass through a legal process. It’s an informal but organized method of providing your family with instructions on the decisions related to financial and personal matters that should be made when you die. This can also be an alternative way of ensuring that your family are cared for after your death and to prevent issues that could arise from not probating the will.

Qrius’ recent article entitled “How to Prepare a Letter of Last Instruction” explains that preparing it can relieve your relatives of added headaches and stress after your death because it can provide crucial information on personal, financial and funeral matters. Here are some ideas as to what to include in your Letter of Last Instruction:

Personal info. This is a basic information like your full name, date of birth, father’s name and mother’s maiden name, address, Social Security number and place of birth. Add information about significant people in your life, like family, friends, business partners, clergy and others you’d like to be notified about your death.

Business and Financial Contacts. List the contact info of your business and financial partners, as well as your accountant and investment adviser. Include information on your insurance policies, as well as your bank account details.

Legal Document Location. Make sure your executor can find important legal documents, such as your will, tax returns, marriage license, Social Security card, birth certificates, trust documents, deeds, veteran benefits info and contracts. State the location of those documents in your Letter of Last Instruction.

Loan and Debt Info. Make a list of creditors containing collateral and payment terms, along with any credit card account numbers and loan account numbers. Likewise, list the people who owe you money, including their contact info and collateral and payment terms.

Usernames and Passwords. Include a section with your usernames and passwords for your online banking accounts, social media email, computer, smartphone and other electronics, so your executor or someone responsible for overseeing your estate can be certain your accounts and financial information are not compromised after your death.

Beneficiaries. Make a list of the names and contact details of all your beneficiaries with additional information on specific instructions you may want to give to clarify your intentions on the distribution of the assets.

Funeral Arrangements. Include your desires as to your funeral arrangements, such as the type of flowers, pictures and service music. You can also state the clothes in which you wish to be buried, the type of service and location and other items that will help your family with this task.

Once you have the letter, be sure your executor or at least a close family member knows where it can be located after your death.

Ask an experienced estate planning attorney for pointers on writing your Letter of Last Instruction and keep updating it regularly.  We can help.

Reference: Qrius (Dec. 8, 2020) “How to Prepare a Letter of Last Instruction”

Estate Planning Documents For Retirees

Research of estate planning documents for retirees shows that most (53%) have a last will and testament. However, they don’t have six other crucial legal documents.

Money Talks News’ recent article entitled “6 Legal Documents Retirees Need — but Don’t Have” says in fact, in this pandemic, 30% of retirees have none of these crucial documents — not even a will — according to the 20th annual Transamerica Retirement Survey of Retirees.

In addition, the Transamerica survey found the following about estate planning documents for retirees:

  • 32% have a power of attorney or medical proxy, which allows a designated agent to make medical decisions on their behalf
  • 30% have an advance directive or living will, which states their end-of-life medical preferences to health care providers
  • 28% have designated a power of attorney to make financial decisions in their stead
  • 19% have written funeral and burial arrangements
  • 18% have filled out a Health Insurance Portability and Accountability Act (HIPAA) waiver, which allows designated people to talk to their health care and insurance providers on their behalf; and
  • 11% have created a trust.

The study shows there is a big gap that retirees need to fill, if they want to be properly prepared for the end of their lives.

The coronavirus pandemic has created an even more challenging situation. Retirees can and should be taking more actions to protect their health and financial well-being. However, they may find it hard while sheltering in place.

Now more than ever, seniors may need extra motivation and support from their families and friends.

The Transamerica results shouldn’t shock anyone. That is because we have a long history of disregarding death, and very important estate planning questions. No one really wants to ponder their ultimate demise, when they can be out enjoying themselves.

However, creating estate planning documents for retirees now will give you peace of mind. More importantly, this planning can save your heirs and loved ones a lot of headaches and stress, when you pass away.

Talk to an experienced estate planning attorney today to get your plan going.

Reference: Money Talks News (Dec. 16, 2020) “6 Legal Documents Retirees Need — but Don’t Have”

What’s Involved in the Probate Process

SWAAY’s recent article entitled “What is the Probate Process in Florida?” says that while every state has its own laws, the probate process can be fairly similar. Here are the basic steps in the probate process:

The family consults with an experienced probate attorney. Those mentioned in the decedent’s will should meet with a probate lawyer. During the meeting, all relevant documentation like the list of debts, life insurance policies, financial statements, real estate title deeds, and the will should be available.   The lawyer will prepare and file petitions and documents and explain the probate process.

Filing the petition. The probate process would be in initiated by the personal representative (executor in other states) named in the will. He or she is in charge of distributing the estate’s assets. If there’s no will, you can ask an estate planning attorney to petition a court to appoint a personal representative. When the court approves the estate representative, the Letters of Administration are issued as evidence of legal authority to act as the personal representative. The personal representative will pay state taxes, funeral costs, and creditor claims on behalf of the decedent. He or she will also notice creditors and beneficiaries, coordinate the asset distribution and then close the probate estate.

Noticing beneficiaries and creditors. The personal representative must notify all beneficiaries of trust estates, the surviving spouse and all parties that have the rights of inheritance. Creditors of the deceased will also want to be paid and will have three months to make a claim on the estate.

Obtaining the letters of administration (letters testamentary) obtained from the probate court. After the personal representative obtains the letter, he or she will open the estate account at a bank. Statements and assets that were in the deceased name will be liquidated and sold, if there’s a need. Proceeds obtained from the sale of property are kept in the estate account and are later distributed.

Settling all expenses, taxes, and estate debts. By law, the decedent’s debts must typically be settled prior to any distributions to the heirs. The personal representative will also prepare a final income tax return for the estate. Note that life insurance policies and retirement savings are distributed to heirs despite the debts owed if they transfer by beneficiary designation outside of the will and the probate process.

Conducting an inventory of the estate. The executor will have conducted a final account of the remaining estate. This accounting will include the fees paid to the personal representative and attorney, probate expenses, cost of assets and the charges incurred when settling debts.

Distributing the assets. After the creditor claims have been settled, the personal representative will ask the court to transfer all assets to successors in compliance with state law or the provisions of the will. The court will issue an order to move the assets. If there’s no will, the state intestate succession laws will decide who is entitled to receive a share of the property.

Finalizing the probate process. The last step in the probate process is for the personal representative to formally close the estate. The includes payment to creditors and distribution of assets, preparing a final distribution document and a closing affidavit that states that the assets were adequately distributed to all heirs.  Learn more about the probate process by contacting our office.

Reference: SWAAY (Aug. 24, 2020) “What is the Probate Process in Florida?”

 

estate planning

Here’s Why You Need an Estate Plan

It’s always the right time to do your estate planning, but it’s most critical when you have beneficiaries who are minors or with special needs, says the Capital Press in the recent article, “Ag Finance: Why you need to do estate planning.”

While it’s likely that most adult children can work things out, even if it’s costly and time-consuming in probate, minor young children must have protections in place. Wills are frequently written, so the estate goes to the child when he reaches age 18. However, few teens can manage big property at that age. A trust can help, by directing that the property will be held for him by a trustee or executor until a set age, like 25 or 30.

Probate is the default process to administer an estate after someone’s death, when a will or other documents are presented in court and an executor is appointed to manage it. It also gives creditors a chance to present claims for money owed to them. Distribution of assets will occur only after all proper notices have been issued, and all outstanding bills have been paid.

Probate can be expensive. However, wise estate planning can help most families avoid this and ensure the transition of wealth and property in a smooth manner. Talk to an experienced estate planning attorney about establishing a trust. Farmers can name themselves as the beneficiaries during their lifetime, and instruct to whom it will pass after their death. A living trust can be amended or revoked at any time, if circumstances change.

The title of the farm is transferred to the trust with the farm’s former owner as trustee. With a trust, it makes it easier to avoid probate because nothing’s in his name, and the property can transition to the beneficiaries without having to go to court. Living trusts also help in the event of incapacity or a disease, like Alzheimer’s, to avoid conservatorship (guardianship of an adult who loses capacity). It can also help to decrease capital gains taxes, since the property transfers before their death.

If you have several children, but only two work with you on the farm, an attorney can help you with how to divide an estate that is land rich and cash poor.

Reference: Capital Press (December 20, 2018) “Ag Finance: Why you need to do estate planning”