Probate Administration

PROBATE ADMINISTRATION

The personal representative, also known as the executor of a will, is responsible for administration of the decedent’s estate.  If the decedent dies intestate (without a will), the surviving spouse may serve as personal representative, or , if there is no spouse or the spouse is unable or unwilling to serve, the person chosen by a majority of the beneficiaries in interest can serve.  The administration process involves collecting the decedent’s assets, paying any debts or taxes owed, filing the decedent’s final tax returns and inventory, distributing the remaining assets in accordance with the provisions of the will, and notifying companies that need to know about the death.

If the decedent created a Trust then the trustee is responsible for implementing the terms of the trust and filing a Notice of Trust with the court.

In Florida, the types of Probate procedures are:

1. Formal Administration: Required for estates involving more than $75,000.00. It is a court supervised proceeding where a will is admitted, a personal representative is appointed, Notice of Administration is sent to interested persons (surviving spouse, beneficiaries, etc.) and a Notice to Creditors is published to identify unknown creditors and sent to all known creditors.  After the expiration of ninety days, creditors who fail to file a Statement of Claim loose their right to collect on the decedent’s debt. Assets are collected, debts and taxes are paid.  After the distribution of Estate assets is made the Estate is closed and the personal representative is relieved of all duties and liabilities to the Estate.

2. Summary Administration: May be available if the value of the estate is less than or equal to $75,000.00.  The persons who receive the estate assets remain liable to creditors of the decedent for two years after date of death unless a Notice to Creditors is published.  After two years, all claims will be barred.

For estate tax reporting purposes the IRS defines estate as the total collection of a decedent’s assets whether or not they pass through probate. After an estate’s assets have been valued, if the decedent’s gross estate exceeds the federal estate tax credit exemption amount, then a Form 706 (Estate Tax Return) must be filed with the IRS and a copy forwarded to the Florida Department of Revenue.

The following table lists the Federal Estate Tax Rate and Exemptions

The scheduled rates and exemptions are as follows Year Top Gift & Estate Tax Rate Gift Tax Exemption Amount Estate Tax Exemption Amount GST Tax Rate GST Exemption Amount 2006 46% $1 million $2 million 46% $2 million 2007 45% $1 million $2 million 45% $2 million 2008 45% $1 million $2 million 45% $2 million 2009 45% $1 million $3.5 million 45% $3.5 million 2010 0 estate tax / 35% gift tax $1 million N/A 0 N/A 2011 and beyond 55% $1 million $1 million 55% $1 million (inflation adjusted)

In the event a loved one passes away, the Toney Law Firm will assist the personal representative, family and beneficiaries with compassion and understanding.  Our firm is involved in all aspects of estate and trust administration.  We represent individual clients and corporate fiduciaries in the probate process which includes admitting the will, qualifying the fiduciaries, tax planning (including post-death planning) and preparing inventories and accountings, collecting assets, notifying creditors and paying debts.  We will also assure that the appropriate tax returns are filed, taxes are promptly paid, and that the balance of the estate assets is distributed to all beneficiaries with care and understanding.

Contact the Toney Law Firm for all your Estate Planning and Probate Administration needs.  We are located in the Pecan Park Office Complex, 804 NW 16th Avenue, Suite B, Gainesville, FL  32601.  Our phone number is (352)376-6800.

ESTATE PLANNING – Wills & Trusts

Wills

 

A will is is a document by which a person (the testator) regulates the rights of others over his or her property or family after death.  If a person dies without a will (intestate), the decedent’s estate is distributed according to the Florida intestacy statutes.  Some of the advantages of creating a will are as follows:

 

1) You decide who receives your property instead of the state directing who will receive your property;

 

2) You may name the personal representative (executor) of your will provided they are qualified under Florida law;

 

3) Real estate and other assets may be sold without court proceedings, if your will authorizes it;

 

4) You decide who bears any tax burden rather than the law making the decision; and

 

5) You may designate a guardian for minor children.

 

 

 

TRUSTS

 

A trust is an arrangement whereby property (including real, tangible and intangible) is managed by one person (or persons, or organizations) for the benefit of another. A trust is created by a settlor, who entrusts some or all of his or her property to people of his choice (the trustees). The trustees hold legal title to the trust property (or trust corpus), but they are obliged to hold the property for the benefit of one or more individuals or organizations (the beneficiary), usually specified by the settlor, who hold equitable title.  The trustees owe a fiduciary duty to the beneficiaries, who are the “beneficial” owners of the trust property.  Trusts are either created during the settlor’s lifetime (inter vivos trusts) or upon the settlor’s death via a will (testamentary trusts).  A trust can either be revocable or irrevocable.

 

• Revocable Trust.  A trust of this kind can be amended, altered or revoked by its settlor at any time, provided the settlor is not mentally incapacitated.  Revocable trusts are becoming increasingly common in the United States as a substitute for a will to minimize administrative costs associated with probate and to provide centralized administration of a person’s final affairs after death.
• Irrevocable Trust.  In contrast to a revocable trust, an irrevocable trust is one in which the terms of the trust cannot be amended or revised until the terms or purposes of the trust have been completed.  Although in rare cases, a court may change the terms of the trust due to unexpected changes in circumstances that make the trust uneconomical or unwieldy to administer, under normal circumstances an irrevocable trust cannot be changed by the trustee or the beneficiaries of the trust.

 

Some common purposes of trusts are as follows:

 

1. Administration Expense and Tax Planning. A trust drafted for this purpose will minimize any Estate tax liability.  A trust can also greatly reduce administration expenses as property in a trust will avoid probate which can be a lengthy and expensive process.
2. Spendthrift Protection. Trusts may be used to protect one’s self against one’s own inability to handle money.  It is not unusual for an individual to create an inter vivos trust with a corporate trustee who may then disburse funds only for causes articulated in the trust document.  These are especially attractive for spendthrifts.  In many cases a family member or friend has prevailed upon the spendthrift/settlor to enter into such a relationship.  These trusts prevent the beneficiary from assigning or levying the income or principal of the trust to creditors.
3. Asset Protection. Asset protection allows a person to divorce himself or herself personally from the assets he or she would otherwise own, with the intention that future creditors will not be able to attack that money, even though they may be able to bankrupt him or her personally.  One method of asset protection is the creation of a discretionary trust, of which the settlor may be the protector and a beneficiary, but not the trustee and not the sole beneficiary.  In such an arrangement the settlor may be in a position to benefit from the trust assets, without owning them, and therefore without them being available to his creditors.
4. Wills and Estate Planning. Trusts frequently appear in wills.  A fairly conventional will often leaves assets to the deceased’s spouse (if any), and then to the children equally. If the children are under 18, or under some other age mentioned in the will (21 and 25 are common), a trust must come into existence until the contingency age is reached. The executor of the will is (usually) the trustee, and the children are the beneficiaries. The trustee will have powers to assist the beneficiaries during their minority.

Please contact the Toney Law Firm for all your Estate Planning questions, toll free at 866-878-7817.

 

PRACTICE AREAS – THE TONEY LAW FIRM

Probate Administration

Probate administration is the process by which the assets of a deceased person are gathered, creditors and taxes are paid, and the remainder of the estate is distributed to beneficiaries.  Probate begins when a Petition for Administration is filed with the court.  Either a person named in the decedent’s will as a Personal Representative or a close relative of the decedent who expects to inherit from the estate normally files the Petition for Administration.  The Notice of Administration alerts all interested parties that an objection to the probate proceedings must be commenced within a certain period of time or be forever barred.

Probate Litigation

Probate litigation is the broad concept of challenging the contents of the Last Will and Testament; a provision of the Last Will and Testament; the appointment of an executor (Florida law refers to an Executor or Executrix as a Personal Representative); or the entire document itself.  Lack of Mental Capacity, Duress, Undue Influence, Intentional Interference with an Expectancy, and/or Improper Signing of the Will are all common issues arising in probate litigation that are either prosecuted or defended.

Estate Planning (Trusts and Wills)

An estate is simply ownership in land or other property.  If you own a home, have some savings, or own any goods such as a car or furniture, then you have an estate.  Estate Planning is the process whereby a person develops a plan and prepares documents to safeguard, protect, and distribute estate assets before and after death for the benefit of loved ones and charities.  The plan takes into consideration the effects of state and federal tax and administrative laws and regulations. It also involves planning for the use of your assets for your care if you become unable to manage your affairs during your lifetime.

Special Needs Trusts

A special needs trust is created to ensure that beneficiaries who are disabled or mentally ill can enjoy the use of property which is intended to be held for their benefit. In addition to personal planning reasons for such a trust (the person may lack the mental capacity to handle their financial affairs) there may be fiscal advantages to the use of a trust. These trusts may also avoid beneficiaries losing access to essential government benefits.

Power of Attorney

Power of Attorney is an authorization to act on someone else’s behalf in a legal or business matter.  A principal authorizes an attorney-in-fact to act on the principal’s behalf by signing a power of attorney.  As an agent, an attorney-in-fact is a fiduciary for the principal, so the law requires an attorney-in-fact to be completely honest with and loyal to the principal in their dealings with each other.  Under Florida law, a power of attorney must contain numerous specific provisions to be fully effective.  Many online forms and store bought forms will be inadequate in providing the attorney-in-fact with the necessary authority to handle the principal’s affairs.

Health Care Surrogate

In the event you are unable to make medical decisions regarding your health due to incapacity, a health care surrogate can give the informed consent necessary for medical treatment, surgery, or diagnostic procedures for your benefit.  The surrogate will consult with your doctor if you cannot.  A complete designation will contain language allowing your surrogate to obtain medical records as well as giving full authorization to communicate with your physicians.

Living Will

A living will is your final declaration to medical personnel and your loved ones that you do not want to have your life artificially prolonged if you are in a persistent vegetative state or have a terminal or end stage condition.  Your physicians will do everything possible to keep you comfortable.  [A living will can help prevent unnecessary emotional suffering and financial expense for both you and your family.]  A living will allows you to anticipate this decision and prevent your family members, or a court, from making this decision for you.

 Elder Law (including Medicaid Planning)

Elder Law focuses on legal issues affecting elders, their spouse and/or their children, such as aging, disability, incapacity, illness, and long term care and nursing home planning.  Issues elder law commonly involves are contracts with nursing homes, arrangements with individuals who will provide services to the elderly, and agreements where property is being sold or transferred. In addition, an Elder Law attorney reviews health insurance, home care, and long term care policies.  Elder law also encompasses many other areas such as estate planning, asset protection and incapacity planning.

Guardianship

A guardianship is a legal proceeding where the court appoints a guardian to oversee the care and finances of an incapacitated person.  A legal guardian is a person who has the legal authority (and the corresponding duty) to care for the personal and property interests of another person, called a ward.  Usually, a person has the status of guardian because the ward is incapable of caring for his or her own interests due to infancy, incapacity, or disability.  Guardianship for an elder person is an absolute last resort.  Proper pre-incapacity planning can prevent the need for this court supervised “living probate.”  Guardianships are very expensive and emotionally draining for a family.

Nursing Home Abuse

Nursing home abuse is a silent tragedy that often goes unnoticed and unreported.  The pain suffered by many elderly persons who find themselves in a negligent nursing home is unimaginable.  Nursing home neglect comes in many forms. There are many reasons why cases of nursing home abuse go unreported.  Often generational beliefs about sex and gender make it difficult for a resident to come forward.  Sometimes the abused person feels ashamed.  Sometimes they are unsure of how to define the abuse, though they know it makes them feel uncomfortable.  Other abused residents feel they have no one to speak to or suffer from dementia and are not believed or are even not fully aware they have been subjected to abuse or neglect.

Signs of Nursing Home Abuse and Neglect:
* Bedsores
* Broken Bones
* Unexplained Injuries
* Malnutrition or weight loss
* Dehydration
* Unexpected Death

If you suspect a person has been the victim of nursing home abuse or neglect report this immediately to the Department of Children and Families at http://www.state.fl.us/cf_web/ or call the abuse hotline at 1-800-96ABUSE (962-2873).  Then call our firm for a full review of the case.