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Life Estate Deed

What Is a Life Estate and How Does It Work?

Life Estate, Definition

A life estate is a special ownership arrangement that allows you to share a property with someone else. Each of the people in a life estate has an ownership interest in a piece of real estate — typically your primary home — but over different time periods.

The person who holds the life estate is called the life tenant. So that’s you if you’re the homeowner. As the life tenant, you own the property during your lifetime.

The other person in the life estate is called the remainderman. This person has an ownership interest in the home but they can’t technically own it until you pass away. But when you die, the home becomes theirs automatically.

How a Life Estate Works

A life estate offers a legal way to jointly own property and make ownership transitions smoother after your death. So say you own a home that you want to leave to one of your children. You could establish a life estate deed specifying yourself as the life tenant and your child as the remainderman.

During your lifetime, you can continue to live in the home. You’d be responsible for paying any preexisting mortgage obligations, property taxes and/or homeowner’s insurance for the property. You’d also be responsible for keeping up with maintenance and repairs. As the life tenant, you could also make improvements to the property or even rent it out.
You wouldn’t, however, be able to do certain things such as taking out any kind of mortgage loan against the property, including a home equity conversion mortgage (HECM), without the remainderman’s consent. A life estate deed would also prevent you from selling the home since the remainderman has an ownership interest in it.

At your death, the property would automatically transfer to the remainderman. At that point, they’d be able to do whatever they like with it, including living in it, renting it out or selling it.

Benefits of Creating a Life Estate

There are several advantages of including a life estate in your estate plan. First and perhaps most importantly, doing so allows your heirs to avoid the probate process for the property in question. Since ownership transfers to them automatically, they wouldn’t need to produce a will or go through probate to claim the property. That’s a good thing since probate can sometimes be a lengthy and expensive process.

In that respect, having a life estate in place is similar to establish a living trust. Just like a life estate, assets held in a trust don’t have to go through probate. Instead, they can be passed on directly to the beneficiaries named by the trust.

Establishing a life estate can also offer reassurance for the life tenant that they’ll always have a place to live. The terms of a life estate deed specifically state that the life tenant has the right to use the home during their lifetime. And for the remainderman, a life estate is essentially a guarantee that they’ll receive ownership of the home once the life tenant passes away. That means there’s no room for error, unlike a will, which could be contested by your heirs or others.

A life estate can also be useful in Medicaid planning. Medicare doesn’t pay for nursing home care, but Medicaid could cover such costs for people who are income- and asset-eligible. Including a home in a life estate can help the remainderman avoid Medicaid estate recovery after the life tenant passes away. Medicaid estate recovery is a process in which the government may try to recoup some of the costs of long-term care paid by Medicaid from the deceased person’s estate.

Life estates can also be useful in managing taxes during your lifetime and for your heirs when you pass away. In most cases, transferring property through a life estate can help you avoid triggering the need to file a gift tax return. You may want to consult a tax professional, however, to make sure that applies in your case before establishing a life estate.

While setting up a life estate can offer certain benefits, there are a few potential downsides to keep in mind.
For one thing, the terms of the life estate deed tend to be specific when it comes to what you can’t do with the property. So if you wanted to take out a home equity loan, for example, or get a reverse mortgage to generate income you likely wouldn’t be able to do that without the remainderman agreeing to it. And even if they did agree, you might be limited as to the type of mortgage loans you could get with a life estate in place.

Life estates also constitute an irrevocable transfer. That means if you change your mind about passing the property on, you wouldn’t be able to revoke it without the remainderman’s consent. If they refuse to give it, then the property would go to them after your death or to their heirs if they pass away before you do. A life estate also doesn’t insulate you against having a tax lien, either for debts owed by yourself or by your remainderman.

You can also run into snags when using a life estate for Medicaid planning. In order to avoid Medicaid estate recovery, the life estate and its shared ownership arrangement have to be in place for at least five years before your death. If you don’t meet the time requirements then your estate could still be tapped to repay long-term care costs paid by Medicaid after your death.

The Bottom Line

A life estate can be a useful planning tool for avoiding probate and managing Medicaid eligibility. It’s an option to consider alongside alternatives, such as a revocable trust or passing on ownership through a last will and testament. Talking to an estate planning expert or financial advisor can help you decide if a life estate is a good fit for your needs.

Read more related articles here:

What is a life estate & how do I use one?

Exercise Caution When Considering a Life Estate Deed

Click here to check out our On Demand Video about Estate Planning.

Click here for a short informative video from our own Attorney Bill O’Leary.

Oprah Sets An Example Using Charitable Trusts

Oprah Sets An Example Using Charitable Trusts

 On CNN  talk show “Piers Morgan Tonight.” Piers interviewed another venerable TV personality, Oprah Winfrey. While their conversation hit many topics, I was struck by Oprah’s statements concerning what she wants her estate plan to do with her massive fortune once she’s gone.

“When I’m gone, everything that I have is going to go to charity because I don’t have children. And I believe that that’s what you should do,” she said. “To whom much is given, much should be given back.”

What an admirable sentiment. I can only imagine the good that will come from her charitable attitude and sizable estate. However, you do not have to be in the Oprah stratosphere of riches to want to give to a good cause, and giving to charity does not mean you can’t also reap some rewards. Using a charitable remainder trust as part of your estate plan, you can both give and receive!

Charitable Remainder Trusts (also called CRT’s) come in several varieties and are generally for people who have highly appreciated assets (such as stock or real estate) that they want to donate to a charity or organization they admire. By utilizing these trusts donors can secure a current tax break, preserve or gain a source of income, and provide their beneficiaries with a tax-free inheritance in the future.

Charitable Remainder Annuity Trust
A charitable remainder annuity trust (CRAT) is a type of CRT used in situations where the donor wishes to provide a non-charitable beneficiary (such as themselves or a loved one) with a stream of income to last for a specific time period. The CRAT is required to pay, at least annually, a fixed percentage of at least 5% of the fair market value of the trust assets to the noncharitable beneficiary, either for the life of the individual or for a period less than 20 years. The remainder, which is required to be at least 10% of the originally contributed amount, then passes to charity. By using a CRAT, the noncharitable beneficiary not only receives an income stream but also an income tax deduction from the present value of the remainder interest. One restriction affecting CRATs is that the donor can transfer property to the trust only once with no additional contributions.

Charitable Remainder Unit Trust
A charitable remainder unit trust (CRUT) is very similar to a CRAT except that with a CRUT the donor can make more than one transfer to the trust. Also, once a CRUT is established it must pay out a specific amount of income each year, as a fixed percentage of at least 5% of the trust’s total value. Like a CRAT, the CRUT must pay an income stream to the noncharitable beneficiary either for the life of the individual or for a period less than 20 years. A trust will not qualify as a CRUT unless the value of the charitable remainder is at least 10% of the initial fair market value of all property transferred to the trust.

These estate planning tools provide a valuable way to give to charity while reaping various tax and income benefits. Putting assets into a CRAT or CRUT removes them from your estate so that no estate taxes will be due on it when you die. The trustee can also sell the asset at full market value, without paying a capital gains tax. And while not tax exempt, a charitable trust allows its organizer to claim a charitable contribution tax deduction while also receiving an income stream.

Read more related articles here:

What Is a Charitable Trust?

Charitable Trusts

Also, read one of our previous Blogs at:

George Michael’s Charity Continues

Click here to check out our On Demand Video about Estate Planning.

Click here for a short informative video from our own Attorney Bill O’Leary.

 

Warren Buffett: This is your 1 greatest measure of success in life (and if you don’t have it, ‘your life is a disaster’)

Warren Buffett: This is your 1 greatest measure of success in life (and if you don’t have it, ‘your life is a disaster’)

Warren Buffett is no doubt one of the few business icons who can deliver the gift of wisdom and truth when we need it most. And those truths, when you really stop and consider them, are always spot-on.

In her biography of Buffett, “The Snowball: Warren Buffett and the Business of Life,” author Alice Schroeder writes about a time when Buffett gave a presentation at The University of Georgia. The students asked him about his definition of success.

When you’re nearing your end of life, your only measure of success should be the number of “people you want to have love you actually do love you,” he answered.

How Warren Buffett realized he and business partner Charlie Munger “were sort of made for each other”

“I know people who have a lot of money, and they get testimonial dinners and they get hospital wings named after them. But the truth is that nobody in the world loves them,” said Buffett. “If you get to my age in life and nobody thinks well of you, I don’t care how big your bank account is, your life is a disaster.”

That’s right, a self-made billionaire says that the amount you are loved — not your wealth or accomplishments — is the ultimate measure of success in life.

To give and receive

Love is one of the most powerful emotions a human being can feel, and yet, we still live in an individualistic society of keeping up with the Joneses: We forge ahead with our business ventures and strategically plan our career paths in hopes of finding fame and fortune. We feel we’ve finally arrived at the top when we’re able to vacation twice a year to exotic islands and drop a European luxury car (or two) in the garage. We dream about having all of these things, love be damned.

“The problem with love is that it’s not for sale,” Buffett told the students. “The only way to get love is to be lovable. It’s very irritating if you have a lot of money. You’d like to think you could write a check: I’ll buy a million dollars’ worth of love. But it doesn’t work that way. The more you give love away, the more you get.”

So how can we follow Buffett’s principle of success in a way where we can truly leave behind a legacy? The path of putting love into motion is a daring and courageous one, but here are a few ways to do it:

1. Be selfless and don’t expect anything in return

The laws of love are reciprocal. When we choose to love someone unconditionally by encouraging and believing in them, love comes back in full force through respect, admiration, trust and loyalty.

If you get to my age in life and nobody thinks well of you, I don’t care how big your bank account is, your life is a disaster.
Warren Buffett
CHAIRMAN AND CEO, BERKSHIRE HATHAWAY

What’s more, when we receive those things, we become more self-compassionate. A 2011 study conducted by the University of California found that self-compassion can increase motivation, willpower and the ability to recover from failure. Another study, published in 2007 in the Journal of Research in Personality, concluded that people who have self-compassion are more likely to be happy, optimistic and show personal initiative.

2. Be empathetic

Empathy is one of most common traits of likable (or, as Buffett prefers to say, “lovable”) people. True empathy occurs when you’re able to step into someone else’s shoes and see their perspective.Empathy also plays a major role in a person’s potential to influence others. In a DDI study of more than 15,000 leaders across 20 industries, researchers found that the ability to listen and respond with empathy was the most critical driver of a team’s overall performance.

3. Make work enjoyable and fun

When you enjoy work, you enjoy life. In Carol J. Loomis’ biography of Buffett, “Tap Dancing to Work: Warren Buffett on Practically Everything,” she mentions a quote from Buffett: “I love every day. I mean, I tap dance in here and work with nothing but people I like. There is no job in the world that is more fun than running Berkshire, and I count myself lucky to be where I am.”

The evidence here is clear: In positive and uplifting cultures where people share the same values, beliefs and norms, you’ll find a high-performing group of people who attract folks of the same kind.

4. Treat others the way they want to be treated

As children, we’re often taught the Golden Rule: “Treat others as you want to be treated.” But the Platinum Rule takes it to a whole new level: “Treat others the way they want to be treated.”

When we follow the Platinum Rule, we can be more certain that we’re respecting what they want, instead of projecting our own values and preferences. That doesn’t mean we should ignore the Golden Rule altogether, but we should realize its limitations given that every person and every situation is so different.

5. Follow your passion

If you want to have your dream career, you must follow your passion. It’s that simple. Many of us take our cushy paychecks and job security for granted, even though we might hate our jobs and would rather be doing something else — something we actually love.

As humans, doing what we love is a major contributor to true happiness in life. So if you don’t know what your passion is, it’s time to figure that out.

Read more related articles at:

Warren Buffett’s Estate Planning Sends Charities Scrambling

Also, read one of our previous Blogs here:

Betty White’s Estate Plan is a Case Study in Good Estate Planning

Click here to check out our On Demand Video about Estate Planning.

Click here for a short informative video from our own Attorney Bill O’Leary.

Alexa

Amazon Alexa will be able to mimic deceased loved ones’ voices

Amazon Alexa will be able to mimic deceased loved ones’ voices

The latest iteration of Amazon’s Alexa voice assistant could sound eerily familiar.

The company announced on Wednesday during its annual re:MARS conference, which focuses on artificial intelligence innovation, that it’s working on an update to its Alexa system that would allow the technology to mimic any voice, even a deceased family member.

In a video shown on stage, Amazon demonstrated how, instead of Alexa’s signature voice reading a story to a young boy, it was his grandmother’s voice.

Rohit Prasad, an Amazon senior vice president, said the updated system will be able to collect enough voice data from less than a minute of audio to make personalization like this possible, rather than having someone spend hours in a recording studio like how it’s done in the past. Prasad did not elaborate on when this feature could launch. Amazon declined to comment on a timeline.

The concept stems from Amazon looking at new ways to add more “human attributes” to artificial intelligence, especially “in these times of the ongoing pandemic, when so many of us have lost someone we love,” Prasad said. “While AI can’t eliminate that pain of loss, it can definitely make their memories last.”

Amazon has long used recognizable voices, such as the real voices of Samuel L. Jackson, Melissa McCarthy and Shaquille O’Neal, to voice Alexa. But AI recreations of people’s voices have also increasingly improved over the past few years, particularly with the use of AI and deepfake technology. For example, three lines in the Anthony Bourdain documentary “Roadrunner” were generated by AI, even though it sounded like they were said by the late media personality. (This particular case raised a stir because it was not made clear in the movie that the dialog was AI generated and had not been approved by Bourdain’s estate). “We can have a documentary-ethics panel about it later,” director Morgan Neville told The New Yorker when the film debuted last year.

More recently, actor Val Kilmer, who lost his voice to throat cancer, partnered with startup Sonantic to create an AI-driven speaking voice for him in the new “Top Gun: Maverick” film. The company used archival audio footage of Kilmer to teach an algorithm how to speak like the actor, according to Variety.

Adam Wright, a senior analyst at IDC Research, said he sees the value in Amazon’s effort.

“I think Amazon is interested in doing this because they have the capability and technology, and they are always searching for ways to elevate the smart assistant and smart home experience,” Wright said. “Whether it drives a deeper connection with Alexa, or just becomes a skill that some folks dabble with from time to time remains to be seen.”

“There are certainly some risks, such as if the voice and resulting AI interactions doesn’t match well with the loved ones’ memories of that individual,” said Micheal Inouye of ABI Research. “For some, they will view this as creepy or outright terrible, but for others it could be viewed in a more profound way such as the example given by allowing a child to hear their grandparent’s voice, perhaps for the first time and in a way that isn’t a strict recording from the past.”

He believes, however, the varying reactions to announcements like this speak to how society will have to adjust to the promise of innovations and their eventual reality in the years ahead.

“We’ll definitely see more of these types of experiments and trials — and at least until we get a higher comfort level or these things become more mainstream, there will still be a wide range of responses,” he said.

Read more related articles here:

Amazon’s Alexa could soon speak in a dead relative’s voice, making some feel uneasy

Also, read one of our previous Blogs here:

There Are Now So Many Remarkable Things to Do With Ashes to Honor Your Loved One.

Click here to check out our On Demand Video about Estate Planning.

Click here for a short informative video from our own Attorney Bill O’Leary.

 

Luke Perry Protected His Family With Estate Planning

Luke Perry Protected His Family With Estate Planning

When Luke Perry, whose full name was Coy Luther Perry III, died on March 4, 2019, he was surrounded by family and loved ones.  Tragically, the actor — who rose to fame playing a teenage heart-throb on Beverly Hills 90210 — died from a condition that almost everyone thinks of as one that only strikes “old” people.  Fortunately, Perry’s foresight to do the proper estate planning meant that the tragedy was not made worse for his family.

At the young age of 52, Perry suffered a serious stroke and was hospitalized under heavy sedation.  Five days later, his family made the decision to remove life support, after it was apparent that he would not recover, following a reported second stroke.  He was surrounded by his children, 21-year-old Jack and 18-year-old Sophie, along with his fiancé, ex-wife, mother, and siblings, among others.

The decision to allow Perry to die – when he was healthy and vibrant less than a week earlier – must have been difficult.  The fact that the hospital allowed Perry’s family to end life support means that Luke Perry likely had executed the proper legal documents so that his family could make the decision.  Specifically, in California, those wishes generally are made in writing, through an Advance Directive or a Power of Attorney.  Without a proper legal document, Luke Perry’s family may have needed an order from a probate court to terminate life support, at least if family members disagreed.  That would have been a public and emotional process that would have prolonged his suffering and made it even harder for his family.

Given that Luke Perry had a reported (but unverified) net worth of around $10 million, it is likely that he created a revocable living trust in addition to a simple will.  If he had only a will, then his estate will have to pass through probate court.  Instead, if Perry had a trust — which is far more likely — and if his trust was properly funded (meaning that he transferred his assets into his trust prior to death), then his assets can pass onto his children without court intervention.  Hopefully, Perry had the same foresight for his assets as he apparently did with his end-of-life documentation.

The one potential unresolved question is whether Luke Perry would have wanted something to go to his fiancé, therapist Wendy Madison Bauer.  Since his reported will was done in 2015, Perry likely did not include Bauer at the time.  If the couple had gotten married prior to his death, then Bauer would typically have received rights as a “pretermitted spouse.”  These rights would not have been automatic, but instead would have depended on the wording of his will and/or trust, as well as whether or not the couple signed a prenuptial agreement that addressed inheritance rights.  But, if the documents did not indicate an intent to exclude Bauer as a beneficiary, then she would have been entitled to one-third of his estate under California law if they had been married.

Because Perry died before marriage, Bauer is not entitled to inherit anything through his will or trust.  This is assuming the report that his children are his only beneficiaries is accurate and no later will, trust, or amendment is found that includes Bauer.  And it is still possible that Perry left money for Bauer in other ways, such as through a joint bank account or life insurance.

Luke Perry’s tragic death provides an important lesson for everyone.  No one should wait until they are “old” to do their estate planning.  Perry’s cancer scare in 2015 sparked him to take action, which simplified the process for his family to terminate life support and will likely make the process of dividing his estate easier.  Perry certainly did not expect to die at age 52, but — at least legally — he was prepared for it.

And as Luke Perry’s situation demonstrates, it’s not just cancer that people need to be worried about.  With the sudden and shocking nature of Perry’s death, awareness is being raised about the dangers of strokes in everyone, including those who are middle-aged instead of elderly.  The New York Times published two insightful articles about the dangers of strokes in those even younger than age 50.  Surprisingly, ten percent of all stroke victims have not yet reached their fifties.  And while very few people around that age die immediately from strokes, the length and quality of life after suffering a stroke is greatly impacted, even in those as young as Perry.

Hopefully Luke Perry’s death can raise awareness not only of stroke prevention and the importance of colorectal screening, but also serve as a reminder that everyone should follow his lead and not procrastinate when it comes to estate planning.  Luke Perry reminds us that tragedy can strike anyone and if that happens, we all want our loved ones to be protected.

Read more related articles here:

Celebrity Estates: Luke Perry, Estate Planning Role Model?

How Luke Perry’s Estate Planning Probably Helped His Grieving Family

Also, read one of our previous Blogs at:

Luke Perry’s Estate Planning – How Well Did He Do?

Click here to check out our On Demand Video about Estate Planning.

Click here for a short informative video from our own Attorney Bill O’Leary.

Chadwick Boseman’s $2.3 Million Estate to Be Evenly Split Between His Widow, Parents

Chadwick Boseman’s $2.3 Million Estate to Be Evenly Split Between His Widow, Parents

·2 min read
Chadwick Boseman poses in the press room during the 2019 American Music Awards at Microsoft Theater on November 24, 2019 in Los Angeles, California.

Although it’s been nearly two years since the tragic passing of beloved actor Chadwick Boseman the sting of his loss still feels somewhat fresh to those who knew and loved him. Chief among them is undoubtedly Boseman’s widow, Simone Ledward-Boseman, and his parents, Leroy and Carolyn, who have recently come to an agreement to split their loved one’s estate down the middle.

According to Black Enterprise, per court documents, Ledward-Boseman asked that her late husband’s estate—which was valued to be at $2.3 million after taxes, funeral, legal, and lawyer fees were taken away—be split down the middle between herself and her in-laws which would see both sides walk away with $1.15million. The Black Panther star reportedly did not have a will at the time of his death, but if he had, that would’ve significantly decreased the amount of legal fees the family was responsible for paying out.

As previously reported by The Root, the Ma Rainey’s Black Bottom star passed away at the age of 43 after a years-long battle with colon cancer. In the weeks after his death, it was revealed that the Oscar-nominated actor chose to keep the knowledge of his diagnosis limited to a small amount of family and friends.

In an intimate essay for The Hollywood Reporter, Boseman’s agent Michael Green opened up at the time about just how seriously Boseman took his career (in terms of the roles he chose) and shared some more insight as to what influenced the actor’s decision to keep his cancer diagnosis private.

Green noted it was Boseman’s mother who “always taught him not to have people fuss over him.”

“[Boseman] also felt in this business that people trip out about things, and he was a very, very private person,” Green said.

Chadwick Boseman is survived by his wife, parents, and brothers Kevin and Derrick.

Read more related articles at:

After Nearly Two Years, Chadwick Boseman’s $2.3M Estate Has Been Evenly Split Between His Wife And Parents

CHADWICK BOSEMAN’S WIDOW, PARENTS AGREE TO SPLIT HIS $2.3M ESTATE

Also, read one of our previous Blogs at:

What Does Entertainer Chadwick Boseman’s Estate Look Like?

Click here to check out our On Demand Video about Estate Planning.

Click here for a short informative video from our own Attorney Bill O’Leary.

QIT

Things to Know About a Qualified Income Trust

Things to Know About a Qualified Income Trust

An estimated 58% of men and 79% of women aged 65 and older will need long-term care at some point in their lives. Long-term care is costly. The average cost of a private nursing home room is $8,121.00 per month nationwide (and over $9,703.00 per month in Florida). Many people assume that Medicaid will cover this cost, but if your income and assets exceed the state’s threshold, you may need to set up a qualified income trust.

In order to qualify for Medicaid long-term care, you cannot exceed the state’s income and asset limits. A qualified income trust will reduce your income levels to below the applicable limit, allowing you to use Medicaid to cover your long-term care costs.

Not everyone will benefit from a qualified income trust (which is also commonly referred to as a “Miller Trust”). Here are seven things to know before creating one.


1. A Qualified Income Trust (QIT) Must be Managed Carefully

A QIT must be managed very carefully. Every month that Medicaid long-term care is required (whether it is for those receiving care at home, in an ALF, or in a nursing home), the income trust must be properly funded.

If your monthly income exceeds the state’s limit, funds must be deposited into the QIT every month that long-term care is required. Enough funds must be deposited to ensure your income is below the threshold, and this amount should be more than just the bare minimum needed to qualify for Medicaid.

To prevent a lapse in coverage and care, it is crucial to ensure that your QIT is funded and administered properly.


2. If Your Income Does Not Exceed the State’s Levels, a QIT May Not Be Required

If your income does not exceed the state’s limits, then a QIT may not be necessary. However, if there is a chance that your income may exceed the threshold on any given month, a QIT will help ensure that you don’t lose your Medicaid benefits.

As an example, for those who have gross incomes that are close to Florida’s Medicaid income cap, we will suggest a QIT to prepare for the possibility of increased income (annual nationwide raise in social security retirement income). To find out what is the Florida Medicaid Income Cap, click this link for Important Medicaid Numbers for Florida.


3. QIT Income May Still Go to the Nursing Home

If you are a single applicant, the funds in your QIT will be dispersed to the facility that’s administering your care. If you are married and your spouse is living at home, the income may be dispersed to him or her, depending on your spouse’s income.

In short, yes, your QIT income will still go to the nursing home if you are a single applicant.

If you are not in a nursing home, you may still need a QIT and you will not lose any of your income (funds deposited into the QIT can be withdrawn to pay for needed health and care expenses at home or in an assisted living facility).


4. A QIT May Require a Proper Durable Power of Attorney

A QIT is an important part of the Medicaid planning and estate planning process.

A proper durable power of attorney is required in order to create a QIT should the Florida Medicaid applicant become incapacitated (a little known fact is that a spouse can also create a QIT without a durable Power of Attorney. But if there is no spouse and the Medicaid applicant is incapacitated, their durable power of attorney must have the power to create the trust, and all documents must be signed properly. The ability for your agent, under a Florida POA, to create a Miller Trust is referred to as a “super power” that must be initialed. Otherwise, the power of attorney will not have the power to create the trust.


5. Income Must be Deposited Properly

Medicaid applicants can choose to deposit at least the minimum amount of income required (i.e. whatever exceeds the Florida income cap). Some choose to deposit more than what is strictly necessary (or even all of their income to a QIT).

However, it’s important to count gross income. The amount of social security that is deposited into your bank account is NOT the full income amount, because Medicare premiums are automatically deducted.  Some pensions also deduct amounts for fees, paying for life insurance, and other expenses. All of this must be added back to calculate gross income (not net).

Only income should go into a QIT, no assets.


6. Upon Death, Assets in a QIT Will be Given to the State

Upon the Medicaid applicant’s death, any remaining income in the QIT will likely be returned to the state. The state may take the income to recover the expenses paid by Medicaid for the beneficiary’s care. Any funds that remain after the state has been reimbursed will be paid to other trust beneficiaries.

Normally, all deposited income is spent each month, so most QITs are usually empty at the time of the applicant’s death. If there is some small amount left over, it will likely not wind up in the hands of heirs.


7. QITs Should be Established by an Experienced Elder Care Attorney

Anyone who may be eligible for Medicaid can establish a QIT, but the trust can only be used when long-term care is required.

With that said, the process of setting up, and properly funding/managing a QIT can be complex, and you do not want to take the risk of compromising critical long-term care. The establishment of a QIT is best handled by an experienced elder care attorney, who focuses on Medicaid planning.  This legal specialist will know how to navigate the process of establishing the income trust and ensuring that it is administered properly.

While it is possible to establish a Florida income trust on your own, one misstep or error can result in you being ineligible for Medicaid and losing valuable long-term care coverage.

If you or a loved one require long-term care or want to plan for long-term care, it is crucial to hire a Medicaid planning attorney. A qualified attorney will help you navigate the complex process of establishing a QIT to ensure you are eligible for Medicaid long-term care.

Read more related articles here:

Qualified Income Trusts.

Long Term Care of Elderly: The Qualified Income Trust

Also, read one of our previous Blogs at:

How Medicaid Planning Trusts Protect Assets and Homes from Estate Recovery

Click here to check out our On Demand Video about Estate Planning.

Click here for a short informative video from our own Attorney Bill O’Leary.

 

prenuptial agreements

WHEN SHOULD YOU CONSIDER SIGNING A PRENUPTIAL AGREEMENT?

WHEN SHOULD YOU CONSIDER SIGNING A PRENUPTIAL AGREEMENT?

 

A prenuptial agreement is a contract between two people looking to get married and the agreement will govern the outcome for certain issues like property division and alimony in the event of a legal separation or divorce. Many people believe that prenuptial agreements are only for the aging tycoons who wish to cut off their younger spouses from the family fortune, but this is not true. A prenuptial agreement can be a valuable tool for all couples; however, while all couples can benefit from a prenuptial agreement, there are specific situations in which it is strongly advisable to consider signing a prenup. In this article, we discuss six of these situations.

You Are a Business Owner

If you are a business owner or have shares in a corporation, or are in a partnership, you should consider signing a prenuptial agreement before getting married. With a prenup, you can specify your spouse’s ownership rights. If you do not have a prenuptial agreement, your spouse may be entitled to up to half of your business in the event of a divorce. If this is not what you want, it is advisable you create a prenuptial agreement before getting married.

You Have Significant Assets

According to a 2018 CNBC article, more and more millennials are signing premarital agreements. According to the article, one of the explanations for this could be because millennials are getting married later, meaning they have more assets to protect. If you have significant assets, signing a prenuptial agreement before getting married can help you ensure that the assets you take with you into the marriage remain in your sole possession in the event you get divorced.

One of You Has Significant Debts

If either you or your partner has significant debts, you should consider signing a prenuptial agreement to keep the obligations separate. In Florida, debts are divided equitably during divorce. So, if you do not want to be forced to pay your partner’s debts or your partner to pay your debts in the event of a divorce, you should consider signing a prenup.

You Have Children From a Previous Marriage

A prenuptial agreement can be used to protect your assets which shall allow you to preserve the assets for your children or if adults, gift or devise them to your children or other family members.

You Received or Are Expecting To Receive an Inheritance

Indeed, in Florida, an inheritance received by one party even in marriage is considered separate property. Notwithstanding, it is still good to include inheritance in a prenuptial agreement. Doing so can help you ensure it remains separate property.

One of You Plans To Stay Home

If you or your partner plans to, for example, stop working and stay home after marriage to raise children, you should consider creating a prenuptial agreement which contains a provision for alimony or some other type of compensation for the lack of work history, lack of work experience and training, and the lost retirement benefits during the years you spent raising children.

Contact a Jacksonville Prenuptial Agreement Lawyer

Source: How millennials are getting smarter about marriage

Read more related articles here:

The Pros and Cons of Prenuptial Agreements

Pros and Cons of a Prenuptial Agreement

Also, read one of our previous blogs at:

Prenuptial Agreements: What Is A Prenup And Should I Get One?

Click here to check out our On Demand Video about Estate Planning.

Click here for a short informative video from our own Attorney Bill O’Leary.

 

elder law

What Is Elder Law?

What Is Elder Law?

Elder law is a field of law dealing with the unique legal issues that affect older adults.

 

Definition and Example Elder Law

Elder law is the specialized field of law that addresses the diverse legal needs of aging populations. It focuses on the legal issues affecting senior citizens and their elderly parents. Lawyers who are versed in these issues are known as” elder law attorney’s”

Suppose that your health is waning, or you expect it to as you approach your senior years. You can work with an elder law attorney who specializes in disability planning to complete an advanced medical directive  with a durable power of attorney for healthcare. That is a document that allows you to name a healthcare proxy to make medical decisions on your behalf when you can no longer do so. That kind of legal planning can avoid putting you in a situation where your healthcare providers have to choose treatments or make other decisions about your health that you might not agree with.

 

How Elder Law Works

Legal issues that impact seniors are governed by complex regulations and laws that vary by state. They often require a unique understanding of the personal impacts of aging, which can make you or your loved ones more physically, financially, and socially vulnerable. Elder law addresses the various decisions and circumstances that come up later in life. It also deals with how your estate plan will be executed after your death.

Elder law attorneys who focus their legal practices on these issues take a holistic approach when working with seniors and their family members. These attorneys help you navigate legal matters while also working with a network of care professionals, such as your health team and social workers and psychologists.

Many people think elder law is only a concern if you have complex life situations, such as a disability or special needs, a second marriage, a high-value estate, or financially reckless adult children. Elder law is important for people with these concerns, but it’s also vital for all seniors to become familiar with elder law. You should be ready to hire an attorney in order to protect yourself and your assets in your golden years and beyond.

 

Alternatives to an Elder Law Attorney

Not all issues relating to aging require the expertise of an elder law attorney. Hiring one when you don’t need one can come with unnecessary and high costs. For example, interpersonal or health issues may call for a social worker, psychologist, or doctor instead.

When in doubt, consult a family member, friend, or clergy member, or your primary care doctor. They can help you determine the scope of the concern and decide whether you need a lawyer. If you are caring for an elderly relative in an assisted living facility, the staff there may be able to recommend resources or experts who can help you find the right kind of help for your situation.

 

Types of Elder Law

Most elder law attorneys don’t specialize in all areas of the law. It’s important to seek out the right expert when you or your family members need legal assistance. Major areas of elder law include:

  • Disability and special needs planning
  • Long-term care planning
  • Estate planning and settlement
  • Guardianship or conservatorship
  • Elder abuse1

Disability and Special Needs Planning

This area of elder law focuses on the support systems that the aging put in place to protect themselves in the event that they become physically or mentally incapacitated. There are some key legal documents that you may want to prepare in advance of such a scenario. These include:

  • A durable power of attorney appoints someone as a legal agent to make certain financial decisions for you when you can’t.
  • An advance medical directive outlines your healthcare wishes in case you become incapacitated, including a durable power of attorney for healthcare.
  • A living will  sets out which treatments you do and don’t want.

Without these documents, the court may leave these decisions up to a guardian (discussed below) who may not be of your choosing.

In many cases, individuals with disabilities or special needs and their family members will be eligible to receive government benefits (Social Security disability benefits, for example). You’ll still need to do some planning to ensure that the individual qualifies for, and will receive, adequate assistance for their needs, though.

Long-Term Care Planning

This type of elder law focuses on the services that seniors often use to live safely when they cannot take care of themselves. They include nursing homes or assisted living facilities and long-term health insurance, along with the means by which they get these benefits (Medicaid or the Department of Veterans Affairs, for example).

Medicaid planning involves repositioning and transferring assets to qualify for Medicaid nursing home benefits. Veterans’ benefits concerning elder law encompass providing for the long-term healthcare needs of veterans of the U.S. military.

Estate Planning and Settlement

Estate planning is the process of deciding who will receive your property after you die and who will be in charge of making sure your final wishes are carried out. It includes disability planning, as discussed above, as well as planning to:

  • Avoid Probate
  • Minimize Estate Fees
  • Protect your beneficiaries from bad decisions and outside influences

A comprehensive estate plan might include the last will, a durable power of attorney, an advance medical directive, and, if needed, a revocable living trust. Also known as a “living trust,” a revocable living trust allows you to appoint someone else to make decisions about assets held in a trust.

Probate is the court-supervised process for settling a deceased persons estate. It may or may not be necessary, depending on how your assets are titled at the time of your death. If you have a revocable living trust, the estate may be settled without the supervision of a probate court.2

Guardianship or Conservatorship

If a person becomes incapacitated and did not put in place a durable power of attorney or advance medical directive, then a family member, a friend, or, in some cases, a stranger will have to go to court and petition for a guardian or conservator to be appointed on behalf of them.3 Guardianship, also referred to as “conservatorship” in some states, is sometimes referred to as “living probate” as it is the court-supervised process of administering an incapacitated person’s estate.

A guardian is usually responsible for making daily care decisions, such as medical decisions, for someone. A conservator makes their financial decisions. Depending on the state, these roles may be filled by the same person, or they may be two different people.

By contrast, if the person took the time to create a disability plan with the help of an estate lawyer who is versed in guardianship, then he or she would have the right legal documents in place to dictate who will make financial and healthcare decisions on their behalf.

Elder Abuse

Unfortunately, as people age, they become more prone to personal or financial abuse. This misconduct can range from Social Security fraud (for example, a non-spouse family member continues to receive benefits after the person has died) to the outright theft of assets.

Financial elder abuse can also occur through the use of a durable power of attorney or by undue influence. For example, someone may wrongfully coerce an older adult to give away their assets or to change their will or revocable living trust. Such abuse has led to this specialized area of litigation aimed at preserving, and, if needed, recovering, an older person’s assets.

Watch out for elder abuse scams that dupe seniors out of their money through fake IRS calls or other “gramma scams.” These scams usually involve desperate pleas for money from people pretending to be grandchildren.4

 

How to Get a Lawyer Who Specializes in Elder Law

One way to find a lawyer is through the National Academy of Elder Law Attorneys (NAELA). This non-profit association was founded in 1987. Its lawyers are trained and experienced in the nuances of elder law and adhere to a set of what it calls “aspirational standards” that hold them to a high standard of professional conduct.

Key Takeaways

  • Elder law is a field of law that focuses on legal issues that affect older individuals.
  • Major areas of elder law include disability and special-needs planning, long-term care planning, estate planning and settlement, guardianship or conservatorship, and elder abuse.
  • Elder law attorneys can be found through the NAELA.

Read more related articles here:

What Does An Elder Law Attorney Do?

Elder Law FAQ

Also, read one of our previous Blogs here:

5 SMART TIPS FOR HIRING AN ELDER LAW ATTORNEY

Click here to check out our On Demand Video about Estate Planning.

Click here for a short informative video from our own Attorney Bill O’Leary.

 

probate FL

All About Probate in Florida

All About Probate in Florida

What is Probate?

Probate is a court-supervised process for identifying and gathering the assets of a deceased person (decedent), paying the decedent’s debts, and distributing the decedent’s assets to his or her beneficiaries. In general, the decedent’s assets pay the probate proceeding’s cost, the decedent’s funeral expenses, then the decedent’s outstanding debts. The remainder of the assets is distributed to the decedent’s beneficiaries. You can find the Florida Probate Code in Chapters 731 through 735 of the Florida Statutes. You can find the rules governing Florida probate proceedings in the Florida Probate Rules, Part I and Part II (Rules 5.010-5.530).

There are two types of probate administration under Florida law: formal administration and summary administration. This pamphlet will primarily discuss formal administration.

There is also a non-court-supervised administration proceeding called “Disposition of Personal Property Without Administration.” This type of administration applies only in limited circumstances.

WHAT ARE PROBATE ASSETS?

Probate administration applies only to probate assets. Probate assets are those assets owned in the decedent’s sole name at death or owned by the decedent and one or more co-owners and lacked a provision for automatic succession of ownership at death. Examples of assets or property that may be probate assets may include:

  • A bank account or investment account in the sole name of a decedent is a probate asset. A bank account or investment account owned by the decedent and payable on death or transferable on death to another, or held jointly with rights of survivorship with another, may not be a probate asset.
  • A life insurance policy, annuity contract or individual retirement account payable to the decedent’s estate is a probate asset. A life insurance policy, annuity contract, or individual retirement account payable to a beneficiary may not be a probate asset.
  • Real estate titled in the sole name of the decedent, or the decedent’s name and another person as tenants in common, is a probate asset (unless it is homestead property). Real estate titled in the name of the decedent and one or more other persons as joint tenants with rights of survivorship is not a probate asset.  Also, property owned by spouses as tenants by the entirety is not a probate asset on the death of the first spouse to die but goes automatically to the surviving spouse.

This list is not exclusive but is intended to be illustrative.

WHY IS PROBATE NECESSARY?

Probate may be necessary to transfer ownership of the decedent’s probate assets to the decedent’s beneficiaries. If the decedent left a valid Will, the Court will admit the Will (according to procedures) to probate to transfer ownership of probate assets to the named beneficiaries. If the decedent had no Will, probate might be necessary to pass ownership of the decedent’s probate assets to those receiving them under Florida law.  Some assets do not require a probate proceeding to transfer ownership.  You should contact a probate attorney to provide specific guidance.

Probate may also be necessary to wind up the decedent’s financial affairs. Administration of the decedent’s estate ensures that the decedent’s creditors are paid if certain procedures are correctly followed.

What is a Will?

A Will is a writing, signed by the decedent and witnesses, that meets Florida law requirements. In a Will, the decedent can name the beneficiaries whom the decedent wants to receive the decedent’s probate assets. The decedent also can designate a personal representative (Florida’s term for an executor) to administer the probate estate.

WHAT HAPPENS IF THERE IS NO WILL?

Someone who dies without a valid Will dies “intestate.” Even if the decedent dies intestate, the probate assets are rarely turned over to the state of Florida. The state would take the decedent’s assets only if the decedent had no heirs.

If the decedent died intestate, a couple of examples of how the decedent’s probate assets will be distributed to the decedent’s heirs are as follows: (found in Part I, Chapter 732 of Florida Statutes):

  • Suppose the decedent was survived by a spouse but left no living descendants. In that case, the surviving spouse receives all of the decedent’s probate estate. A “descendant” is a person in any generational level down the descending line from the decedent and includes children, grandchildren, parents, and more remote descendants.
  • Suppose the decedent was survived by a spouse and left one or more living descendants (all of whom are the descendants of both the decedent and the spouse). The surviving spouse has no additional living descendants (who are not a descendant of the decedent). In that case, the surviving spouse receives all of the decedent’s probate estate.
  • Suppose the decedent was not married at the time of death but was survived by one or more descendants. In that case, those descendants will receive all of the decedent’s probate estate. If there is more than one descendant, the decedent’s probate estate will be divided among them in the manner prescribed by Florida law. The division will occur at the generational level of the decedent’s children. So, for example, if one of the decedent’s children did not survive the decedent, and if that child has surviving descendants, the share of the decedent’s estate that would have been distributed to the deceased child will instead be distributed among the descendants of the deceased child.
  • Suppose the decedent was not married at the time of death and had no living descendants. In that case, the decedent’s probate estate will pass to the decedent’s surviving parents, if they are living, otherwise to the decedent’s brothers and sisters.
  • Florida’s intestate laws will pass the decedent’s probate estate to other, more remote heirs if the decedent is not survived by any of the close relatives described above.

There are certain exceptions for homestead property, some personal property, among other exceptions to the distribution of the decedent’s probate estate under Florida’s intestate laws, as discussed above. Assets subject to these exceptions will pass in a manner different from that described in the intestate laws.

For example, if the decedent’s homestead property was titled in the decedent’s name alone, and if a spouse and descendants survived the decedent, the surviving spouse takes a life estate in the property.  The descendants receive the decedent’s homestead property only after the surviving spouse dies. The surviving spouse also, however, has the right to make a special election within six months of the decedent’s death to receive an undivided one-half interest in the homestead property instead of the life estate provided specific procedures are timely followed.

Who is Involved in the Probate Process?

Depending upon the facts of the situation, any of the following may have a role to play in the probate administration of the decedent’s estate:

  • Clerk of the circuit court in the county of the decedent’s domicile at the time of the decedent’s death.
  • Circuit court judge.
  • Personal representative (also known as an executor).
  • Attorney providing legal advice and services to the personal representative throughout the probate process.
  • Those filing claims in the probate proceeding relative to debts incurred by the decedent, such as credit card issuers and health care providers.
  • Internal Revenue Service (IRS), as to any federal income taxes that the decedent may owe, any income taxes that the decedent’s probate estate may owe, and, sometimes, federal gift, estate, or generation-skipping transfer tax matters.

WHERE DO YOU FILE PROBATE PAPERS?

The custodian of a Will must deposit the original copy of the Will with the clerk of the Court having the venue of the decedent’s estate within 10 days of receiving information that the testator is dead. (S. 732.901, Florida Statutes.) There is no fee to deposit the Will with the clerk of Court. However, a filing fee must be paid to the clerk upon opening a probate matter. The clerk then assigns a file number and maintains an ongoing record of all papers filed with the clerk for the administration of the decedent’s probate estate.

In the interest of protecting the decedent’s beneficiaries’ privacy, any documents containing financial information about the decedent’s probate estate are not available for public inspection.

WHO SUPERVISES THE PROBATE ADMINISTRATION?

A circuit court judge presides over probate proceedings.

The judge will consider evidence to confirm the beneficiaries’ identities or decedent’s heirs as those who will receive the decedent’s probate estate.

Suppose the decedent had a Will that nominated a personal representative. In that case, the judge will also decide whether the person or institution appointed is qualified to serve in that position. Suppose the nominated personal representative meets the statutory qualifications. In that case, the judge will issue “Letters of Administration,” also referred to simply as “Letters.” These “Letters” are evidence of the personal representative’s authority to administer the decedent’s probate estate.

Suppose any questions or disputes arise while administering the decedent’s probate estate. In that case, the judge will hold a hearing as necessary to resolve the matter in question. The judge’s decision will be set forth in a written directive called an “Order.”

What is a Personal Representative, and What Does the Personal Representative Do?

The personal representative is the person, bank, or trust company appointed by the judge to be in charge of the administration of the decedent’s probate estate. The term “personal representative” is used in Florida instead of such terms as “executor, executrix, administrator, and administratrix.” The personal representative has a legal duty to administer the probate estate according to Florida law. The personal representative must:

  • Identify, gather, value, and safeguard the decedent’s probate assets.
  • Publish a “Notice to Creditors” in a local newspaper to notice potential claimants to file claims in the manner required by law.
  • Serve a “Notice of Administration” to provide information about the probate estate administration and procedures required to be followed by those having any objection to the administration of the decedent’s probate estate.
  • Conduct a diligent search to locate “known or reasonably ascertainable” creditors and notify these creditors of the time by which their claims must be filed.
  • Object to improper claims, and defend suits brought on such claims.
  • Pay valid claims.
  • File tax returns and pay any taxes properly due.
  • Employ professionals to assist in administering the probate estate, for example, attorneys, certified public accountants, appraisers, and investment advisers.
  • Pay expenses of administering the probate estate.
  • Pay statutory amounts to the decedent’s surviving spouse or family.
  • Distribute probate assets to beneficiaries.
  • Close the probate estate.

Suppose the personal representative mismanages the decedent’s probate estate. In that case, the personal representative may be liable to the beneficiaries for any harm they may suffer.

WHO CAN BE A PERSONAL REPRESENTATIVE?

The personal representative can be an individual or a bank or trust company, subject to certain restrictions. To qualify to serve as a personal representative, an individual must be either a Florida resident or, regardless of residence, a spouse, sibling, parent, child, or other close relative of the decedent. An individual who is not a legal resident of Florida and is not closely related to the decedent cannot serve as a personal representative.

Individuals are not qualified to act as a personal representative if they are either younger than 18, mentally or physically unable to perform the duties, or have been convicted of a felony.

A trust company incorporated under the laws of Florida, or a bank or savings and loan authorized and qualified to exercise fiduciary powers in Florida, can serve as the personal representative.

WHOM WILL THE COURT APPOINT TO SERVE AS PERSONAL REPRESENTATIVE?

If the decedent had a valid Will, the judge will appoint the person or institution named by the decedent in that Will to serve as personal representative, as long as the named person or bank or trust company is legally qualified to serve.

If the decedent did not have a valid Will, the surviving spouse has the first right to be appointed by the judge to serve as a personal representative. If the decedent was not married at the time of death, or if the decedent’s surviving spouse declines to serve, the person or institution selected by a majority in interest of the decedent’s heirs will have the second right to be appointed as personal representative. If the heirs cannot agree among themselves, the judge will appoint a personal representative after a hearing is held for that purpose.

WHY DOES THE PERSONAL REPRESENTATIVE NEED AN ATTORNEY?

A personal representative should always engage a qualified attorney to assist in the administration of the decedent’s probate estate. Many legal issues arise, even in the simplest probate estate administration, and most of these issues will be novel and unfamiliar to non-attorneys.

The attorney for the personal representative advises the personal representative on the rights and duties under the law and represents the personal representative in probate estate proceedings. The attorney for the personal representative is not the attorney for any of the beneficiaries of the decedent’s probate estate.

A provision in a Will mandating that a particular attorney or firm be employed as the attorney for the personal representative is not binding. Instead, the personal representative may choose to engage any attorney.

What are the Estate’s Obligations to Estate Creditors?

One of the primary purposes of probate is to ensure that the decedent’s debts are paid in an orderly fashion. The personal representative must use diligent efforts to give actual notice of the probate proceeding to “known or reasonably ascertainable” creditors. This gives the creditors an opportunity to file claims in the decedent’s probate estate if any. Creditors who receive notice of the probate administration generally have three months to file a claim with the clerk of the circuit court. The personal representative, or any other interested persons, may file an objection to the statement of claim. If an objection is filed, the creditor must file a separate independent lawsuit to pursue the claim. A claimant who files a claim in the probate proceeding must be treated fairly as a person interested in the probate estate until the claim has been paid or until the claim is determined to be invalid.

The legitimate debts of the decedent, specifically including proper claims, taxes, and expenses of the administration of the decedent’s probate estate, must be paid before distributions are made to the decedent’s beneficiaries. The Court will require the personal representative to file a report to advise of any claims filed in the probate estate and will not permit the probate estate to be closed unless those claims have been paid or otherwise disposed of.

HOW IS THE INTERNAL REVENUE SERVICE (IRS) INVOLVED?

The decedent’s death has two significant tax consequences: It ends the decedent’s last tax year for purposes of filing the decedent’s federal income tax return, and it establishes a new tax entity, the “estate.”

The personal representative may be required to file one or more of the following returns, depending upon the circumstances:

  • The decedent’s final Form 1040, U.S. Individual Income Tax Return, reporting the decedent’s income for the year of the decedent’s death.
  • One or more Forms 1041, U.S. Income Tax Return for Estates and Trusts, reporting the estate’s taxable income.
  • Form 709, U.S. Gift Tax Return(s), reporting gifts made by the decedent prior to death.
  • Form 706, U.S. Estate Tax Return, reporting the decedent’s gross estate, depending upon the value of the gross estate.

The personal representative also may be required to file other returns not specifically mentioned here.

The personal representative has the responsibility to pay amounts owed by the decedent or the estate to the IRS. Taxes are normally paid from probate assets in the decedent’s estate and not from the personal representative’s own assets; however, under certain circumstances, the personal representative may be personally liable for those taxes if they are not properly paid.

The estate will not have any tax filing or payment obligations to the state of Florida; however, if the decedent owed Florida intangibles taxes for any year before the repeal of the intangibles tax as of Jan. 1, 2007, the personal representative must pay those taxes to the Florida Department of Revenue.

What are the Rights of the Decedent’s Surviving Family?

The decedent’s surviving spouse and children may be entitled to receive probate assets from the decedent’s probate estate, even if the decedent’s Will gives them nothing. Florida law protects the decedent’s surviving spouse and certain surviving children from total disinheritance.

For example, a surviving spouse may have rights in the decedent’s homestead real property. A surviving spouse also may have the right to come forward to claim an “elective share” from the decedent’s probate estate. The elective share is, generally speaking, 30 percent of the decedent’s assets, including any assets that are non-probate assets. A surviving spouse and/or the decedent’s children also may have the right to a family allowance to provide them with funds before the final distribution of the estate assets and rights in exempt property that will be paid to them instead of to creditors in satisfaction of claims against the probate estate. It is important to note that a spouse may waive rights to an elective share, family allowance, and/or exempt property in a valid pre-marital or post-marital agreement.

In addition, if the decedent married or had children after the date of the decedent’s last Will, and if the decedent neglected to provide for the new spouse or children, an omitted family member may nevertheless be entitled to a share of the decedent’s probate estate.

The existence and enforcement of these statutory rights require knowledge about the applicable laws and procedures and are best handled by an attorney.

WHAT RIGHTS DO OTHER POTENTIAL BENEFICIARIES HAVE IN THE DECEDENT’S PROBATE ESTATE?

Except as provided in the immediately preceding section, a Florida resident has the right to entirely disinherit anyone. It is not necessary to give the disinherited beneficiary a nominal gift of, for example, $1.00.

How Long Does Probate Take?

It depends on the facts of each situation. For example, the personal representative may need to sell real estate before settling the probate estate or resolve a disputed claim filed by a creditor or a lawsuit filed to challenge the validity of the Will. Any of these circumstances would tend to lengthen the process of administration. Even the simplest of probate estates must be open for at least the three-month creditor claim period; it is reasonable to expect that a simple probate estate will take about five or six months to properly handle.

If the estate does not have to file a federal estate tax return, the final accounting and other documents necessary to close the probate estate are first due within 12 months after the Court issues Letters of Administration to the personal representative. This period can be extended if necessary.

If the estate is required to file a federal estate tax return, the return is initially due nine months after the date of the decedent’s death; however, the time for filing the return can be extended for another six months. If a federal estate tax return is required, the final accounting and other documents to close the probate administration are due within 12 months from the date the estate tax return, as extended, is due. This date can also be extended if necessary.

HOW ARE THE PERSONAL REPRESENTATIVE’S COMPENSATION AND PROFESSIONAL FEES DETERMINED?

The personal representative, the attorney, and other professionals (such as appraisers and accountants) are entitled to receive reasonable compensation. The personal representative’s compensation is usually determined in one of five ways:

  • As set forth in the Will.
  • As set forth in a contract between the personal representative and the decedent.
  • As agreed among the personal representative and those who will bear the impact of the personal representative’s compensation.
  • The amount is presumed to be reasonable as calculated under Florida law if the amount is not objected to by any of the beneficiaries.
  • As determined by the judge.

The fee for the attorney for the personal representative is usually determined in one of three ways:

  • As agreed among the attorney, the personal representative, and those who bear the impact of the fee.
  • The amount presumed to be reasonable calculated under Florida law if the amount is not objected to by any of the beneficiaries.
  • As determined by the judge.

WHAT ARE ALTERNATIVES TO FORMAL ADMINISTRATION AVAILABLE?

Florida law provides for several alternates, abbreviated probate procedures other than the formal administration process.

“Summary Administration” is generally available only if the value of the estate subject to probate in Florida (less property, which is exempt from the claims of creditors; for example, homestead real property in many circumstances) is not more than $75,000, and if the decedent’s debts are paid, or the creditors do not object. Those who receive the estate assets in a summary administration may remain liable for claims against the decedent for two years after the date of death. Summary administration is also available if the decedent has been dead for more than two years and there has been no prior administration.

Another alternative to the formal administration process is “Disposition Without Administration.” This is available only if probate estate assets consist solely of property classified as exempt from the claims of the decedent’s creditors by applicable law and non-exempt personal property, the value of which does not exceed the total of (1) the cost of preferred funeral expenses; and (2) the amount of all reasonable and necessary medical and hospital expenses incurred in the last 60 days of the decedent’s final illness, if any.

What if There is a Revocable Trust?

If the decedent had established what is commonly referred to as a “Revocable Trust,” a “Living Trust” or a “Revocable Living Trust,” in certain circumstances, the trustee might be required to pay expenses of administration of the decedent’s probate estate, enforceable claims of the decedent’s creditors and any federal estate taxes payable from the trust assets. The trustee of such a trust is always required to file a “Notice of Trust” with the clerk of the Court in the county in which the decedent resided at the time of the decedent’s death. The notice of trust gives information concerning the identity of the decedent as the grantor or settlor of the trust and the current trustee of the trust. The purpose of the notice of trust is to make the decedent’s creditors aware of the existence of the trust and of their rights to enforce their claims against the trust assets.

All of the tasks that must be performed by a personal representative in connection with the administration of a probate estate must also be performed by the trustee of a revocable trust, though the trustee generally will not need to file the same documents with the clerk of the court. Furthermore, if a probate proceeding is not commenced, the assets making up the decedent’s revocable trust are subject to a two-year creditor’s claim period, rather than the three-month non-claim period available to a personal representative.

The assets in the decedent’s revocable trust are a part of the gross estate for purposes of determining federal estate tax liability.

Read more related articles here:

HOW DO I ACCESS PROBATE RECORDS?

Duval County Probate

Also, read one of our previous Blogs here:

Is An Attorney Required For Probate In Florida?

Click here to check out our On Demand Video about Estate Planning.

Click here for a short informative video from our own Attorney Bill O’Leary.

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