Probate

Our population is aging and we are seeing an increase in probate estates administered in Florida courts. With that comes litigation. Heirs and family members may challenge the validity of a will. Many times these wills were executed many years before death. Or, a loved one was vulnerable at the end of his or her life. This opens the person up to being taken advantage of by a family member, caregiver or close friend.

In order to set aside a will, you may need to prove the following in court:

• Fraud – Did someone use fraud to induce the person to make changes to his or her estate-planning document? Promises may have been made to the person in order to secure a larger share of the estate.
• Undue Influence – Did a caregiver, family member or close friend assert him or herself into the vulnerable individual’s life to the point where he or she was able to exert undue influence on the decisions being made at the end of life?
• Lack of mental capacity – Did the person have the legal capacity to execute estate-planning documents? The heirs may have been led to believe the person was capable when mental illness, Alzheimer’s or dementia may be the cause for changes in their estate plan.
• Coercion – Unfortunately, unscrupulous people may use their positions to coerce vulnerable adults to make changes to their estate planning documents.

We also see abuses of the estate administration process. Individuals named in the documents need to accept fiduciary responsibilities that cannot be overlooked. When you retain counsel to assist you in protecting your rights as a potential heir, some of the issues we will look at include:

• What is the administration fee being charged by the personal representative or attorneys hired to administer the estate?
• Is the personal representative following all of the court orders regarding timelines and reports?
• Are assets being distributed without the heirs being informed?
• Are you being shown all of the documents related to the estate?
• Was the will properly executed?
• Did the decedent tell family members there was a different distribution plan than what was written in the estate planning documents?

If you have been named the personal representative of an estate, we can also help you navigate all of your responsibilities and reduce the possibility of litigation by potential heirs. It is worth a phone call to our office to make sure that your interests are being protected.

Call Kovar Law Group today for a FREE Florida Estate Litigation consultation. Dial 727-827-7777 and have all of your questions answered.

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What is a trust, anyway?

A trust is simply a document that provides for the distribution of estate assets either during the life of a person or at death. A trust can help avoid the probate process and the named trustee will handle all of the duties of distributing the assets to the beneficiaries of the trust. As you might imagine, this can lead to disagreements between family members or there may be claims that the named trustee had undue influence over the person during his or her lifetime.

We have seen an increase in trust litigation. This may be in part due to increased scrutiny of the discretion being exercised by trustees; or inexperienced attorneys drafting ambiguous trusts. Whatever the reason, if you are a trustee or beneficiary, you need to contact counsel that has experience on both sides.

If you are the beneficiary of a trust document, contact our office today for a FREE consultation. The call is free and it may serve to protect your interests. Call Kovar Law Group today at (727) 827-7777.

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Some assets can be distributed outside of probate. Examples are:

1. Bank accounts with payable-on-death (POD) designations
2. Real estate held as tenants by the entirety or joint tenants with right of survivorship
3. Retirement accounts or life insurance policies with valid beneficiary designations.

Each case is different, so the costs vary. There is a statute that sets forth the reasonable fees for probate. Under that schedule, the attorney’s fee is about three percent of the estate’s assets. Sometimes we are able to work on a flat fee basis.

The Personal Representative is entitled to be paid a fee for his or her services, typically three percent as of the total estate assets.

The estate will incur Court costs and the expense of publishing the Notice to Creditors. If there are tax returns that must be prepared, the accountant will charge for their preparation.

If the estate is contested, the attorneys’ fees will be much higher than if the matter is uncontested.

Is It Possible For Someone To Navigate The Probate Process On Their Own?

In many cases where Formal Administration is necessary, the law requires that the Personal Representative be represented by an attorney. In other cases, a client can act without an attorney, but I recommend against it because the probate process has strict requirements and deadlines. It can be tricky and time-consuming to get through the process without professional assistance.

For more information on Costs Associated with Probate, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling 727-827-7777 today.

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If someone dies leaving assets titled in their own name, often the only way for those assets to be taken out of the name of the person who died and put into the names of the living is through a Court order, which is the result of the probate process.

What Are The Top Misconceptions People Have About Probate?

Many people believe that if they were an Agent under someone’s Durable Power of Attorney, they are able to continue to exercise their right as Agent after the person passes away. That is not the case. An Agent’s ability to take action is extinguished along with the life of the person who made the Power of Attorney. Taking action with respect to a decedent’s assets before a probate is opened is not allowed and can get someone into trouble. Another heir might argue that the Agent acted fraudulently. Asset transfers might have to be rolled back.

Another common misconception is that having a will avoids probate. There are trusts and other estate planning tools we can use to avoid probate; a will is not one of those. However, there are things we can do things when drafting a will that can make probate easier, less expensive, and less time-consuming.

Why Do People Generally Fear The Probate Process?

Probate can be time-consuming, depending on the size and complexity of the estate. Another source of frustration is disputes over a will. Most of the time, however, probate goes smoothly. The cases are resolved in a few weeks or a few months depending on the size of the estate. But the horror stories get the attention, and that is why probate has bad reputation.

For more information on Probate Proceedings in Florida, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling 727-827-7777 today.

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We handle both routine and contested probate matters.

Whom Do You Represent In Probate Cases?

Typically, we represent either the person that has been appointed the Personal Representative or we represent another family member or heir.

How Does An Attorney Help A Client In The Probate Process?

In many probate cases, the Court requires an attorney to be involved. Typically, we will work with the client to gather all of the information needed to complete the process from start to finish. We will prepare all of the papers that have to be filed with the Court and gather all the necessary documents that must be sent to the Court. We will make sure we meet all of the deadlines that the law requires. If there are any disputes we will work with our clients to get those disputes resolved either through a settlement or by presenting our clients’ positions in Court if that is necessary.

What Is Probate and Who is Subject To It?

Probate is the legal process for transferring the assets of someone who died from his or her name into the names of the people that are left behind: to pay his or her debts and pay what remains to the people to which he or she wanted to leave those assets.

Is There More Than One Type Of Probate?

There are several kinds of probate. We most commonly encounter Formal Administration, Summary Administration and Ancillary Administration. Summary Administration is an expedited form of probate; to be eligible for Summary Administration, the decedent’s assets, not including his or her home, must be worth less than $75,000 or the decedent died more than two years ago.

In our experience, just because an estate is theoretically eligible for Summary Administration does not mean that Summary Administration is actually going to work. Whenever someone is going to have to take action, for example, to evict a tenant or settle a disputed claim, even if the estate is technically within the monetary limit for Summary Administration, Summary Administration will not work. The process is not flexible enough to accommodate anything more complex than a petition and a single Order that the judge signs.

With Formal Administration, the Court appoints somebody Personal Representative, and that person has the legal authority to sell and manage the assets of the person who passed away.

Ancillary Administration is a special form of probate for the estate of a person that did not live in Florida at the time of death, but had some asset in Florida. Usually, that asset is real estate. The Florida Court has the ability to order the distribution of real estate that is in the state of Florida.

For more information on Handling Probate In Florida, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling 727-827-7777 today.

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Our goal is to complete probate as quickly as possible while assuring that the law’s requirements are fulfilled and that those entitled to assets receive what they should.

What Sets Your Firm Apart In Handling Probate Matters?

Many law firms only handle routine probate matters. We have experience dealing with contested matters.

We have systems in place to assure that probate cases are handled both promptly and thoroughly.

For more information on Completion Of Probate, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling 727-827-7777 today.

When considering if you need to seek counsel to either contest a trust or the handling of its affairs, you should look at a few points before making your decision:

Lack of Mental Capacity – Did the family member who executed the trust have the mental capacity to make decisions about the distribution of his or her assets? Was he or she in the hospital or taking prescription medications at the time? Did he or she have dementia or Alzheimer’s that could have affected his or her decision-making? Are there mental health issues that may have incapacitated him or her when the trust was drafted?

Fraud – Did the trustee commit fraud if he or she was involved in the drafting of the trust? Were promises made to the person in order to sign over certain assets to a beneficiary? If you suspect that there was fraud during the drafting of the trust document, you may be able to challenge the distribution of assets or have the entire trust document invalidated. This would force the courts to use the same rules as for intestate estates.

Undue Influence – Has a close relative or caregiver recently been named as the trustee and significant beneficiary of estate assets? Has this same person made it difficult to visit or communicate with your loved one before his or her death? If you suspect that a caregiver or close family member has coerced your loved one to sign documents, contact an experienced trust litigation attorney immediately to protect your rights.

Poor Drafting or Execution of Documents – If you can get a copy of the trust document as a beneficiary, it is worthwhile to have everything reviewed by a trusted attorney. There are many lawyers claiming to do estate planning who see trust documents as a major profit center for the law firm. However, they may not have followed all of the procedures for executing the documents properly. Were the documents signed with the settlor and two witnesses present with notary authentication? If not, the documents may be rendered invalid.

Improper Handling of the Trust Estate – A trust may help avoid probate, but a trustee still has a fiduciary duty to the beneficiaries. There are rules that need to be followed in order to distribute the assets in accordance with the decedent’s wishes. Is there a spousal elective share that needs to be determined properly? Is the trustee distributing assets that are not allowed or exceed a limit set in the documents? We often see this when it comes to motor vehicles. Family members that have a child with immediate transportation needs or have their own issues will contact the trustee inquiring about the title and “using” the car until the estate is settled. These mistakes may be grounds for removal of the trustee or recovery of assets from individuals.

When evaluating whether the trustee is handling the affairs properly you should ask these important questions:

• Has the trustee made all the proper distributions in a timely manner?
• Is the trustee making proper accountings during the proceedings?
• Has the trustee been warned by a court to file certain documents, or face discipline?
• Is the trustee making decisions that appear to contradict the terms of the trust?
• Are proper decisions being made with respect to the investment of funds?
• Is the trustee receiving compensation? Is he or she overcharging, based on the terms of the trust?
• Does the trustee have an apparent conflict of interest when dealing with an issue of distribution?
• Make sure the trustee is complying with all applicable tax statutes and filing appropriate returns or engaging tax counsel.

If you have questions about how your trust administration is being handled, get them answered and call Kovar Law Group for a FREE St. Petersburg Florida Trust Litigation conference. Call (727) 827-7777 today.

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What is a Contingency Fee Agreement?

In trust litigation, attorneys are allowed to enter into contingency fee agreements with their clients. This simply means that the payment of attorney fees is “contingent” upon the outcome of the case. There are strict rules that must be followed for these agreements to be allowed in Florida. Attorney’s at Kovar Law Group makes sure to explain every detail of their agreements with prospective clients and will always have them sign a written document confirming those conversations. The contingency agreement should discuss the costs of litigation and how the case will be handled if it is settled before or during trial.

Attorneys that enter into contingency agreements are bearing much of the risk in the case and therefore can charge higher fees if there is successful recovery of assets. You always have the option of paying your attorney on an hourly basis. If you do so, most law firms will require a significant retainer to begin working on your case.

If you would like to discuss your case, call Kovar Law Group today for a FREE consultation. Call today at (727) 827-7777.

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• Privacy: Trusts, unlike wills, do not have to be filed with the court. As such, trusts do not become part of public record. Privacy is one of the main reasons people of means choose to pass their property through trusts.
• Control: Trusts allow the deceased person the ability to control his or her money for years, sometimes decades, into the future. A will only allows the deceased person to control who receives his or her property. People who make trusts (“settlors”) can decide to stretch out distribution over time, only allow distributions for certain reasons, or can divide the interests in their property between different beneficiaries.
• Taxes: Setting up a trust can help settlors reduce gift and estate taxes that may be owed. Once property is put in a trust irrevocably, the transfer of property is complete. What this means for tax purposes is if you fund an irrevocable trust with $1,000,000 and over the course of your life the trust grows to $2,000,000, you will only owe gift or estate tax on the gift when it was completed so $1,000,000. For more on the federal estate and gift tax, see this post.
• Asset protection: Most trust contain provisions called spendthrift provisions. Spendthrift provisions protect the trust assets from being claimed by creditors. Most spendthrift provisions do not allow a creditor to place a claim or lien on a beneficiary’s interest nor do they allow a beneficiary to assign his or her interest to a creditor.

For more information on Advantages Of Having A Trust, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (727) 827-7777 today.

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Your debt does not die with you. This is a common misconception. However, understanding the laws of creditor’s claim may assist you in planning how to deal with your debt after death.

If a probate of your estate is opened within 2 years of your death, your personal representative or the court will publish a notice to creditors so that they may file claims against your estate. Any creditor that properly files a claim with the court will be paid out of the assets in your probate estate.

The court will rank each of the creditor’s claims according to a statute, which determines which claims have priority. Then, the claims will be paid out of the probate estate before anything is distributed to the deceased person’s beneficiaries.

However, assets passing outside of the probate estate will not be subject to these creditor’s claims. For example, if your checking account is jointly titled with your spouse, he or she will have access to that account immediately and creditors will not be able to reach those funds.

Also, if your house is registered as your homestead, your homestead is protected from the claims of creditors so long as it passes to those allowed under statute (usually your spouse and your children).

If your estate is not probated until more than 2 years after your death, claims against your estate are barred against the statute of limitations, meaning that those claims cannot be enforced by law. If you have few assets and many debts, your heirs may choose to wait for two years before filing probate.

For more information on Creditor Claims In Florida, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (727) 827-7777 today.

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If a deceased person’s heir is unhappy with the distribution of property under the deceased person’s will, he or she may decide to contest probate and have the will invalidated. There are 5 different theories under which a will can be determine invalid. Below is an overview of those 5 theories.

Formalities

Each state, including Florida, has certain requirements for the creation of a will. These requirements include:

• The will must be signed at the end by the person who is making the will or by a person directed by the person making the will in his or her presence.
• Two attesting witnesses must sign the will in the presence of the person making the will and in the presence of each other.
• Each witness must be competent.
• Neither witness can be interested meaning that the witness cannot be inheriting any property under the will.

Furthermore, the law makes allowances for certain circumstances where the person making the will marries, has a child, adopts, or divorces after the will is made.

Testamentary Capacity

In order for a will to be valid, the person making the will must have what is referred to as “testamentary capacity.” In short, the person making the will must understand who he or she is, must understand what property he or she has, and must understand that the will accurately represents how he or she wants his or her property distributed after his or her death.

Fraud, Duress, and Undue Influence

Fraud, duress, and undue influence is a much more serious kind of will contest. By contesting a will under one of these theories, you are alleging that the person who will inherit under the will used their influence to overcome the will of the deceased person in order to make them execute a will naming the influencer as the beneficiary.

To prove that undue influence occurred, the person contesting the will must show that the deceased person and the influencer had a confidential relationship. A confidential relationship may be legal, moral, social, domestic, or personal in nature. This would include relationships such as spouses, physical and patient, attorney and client, etc.

If the person contesting the will can show a confidential relationship, then the burden shifts to the influencer to prove that he or she did not procure the will through undue influence.

The Will is Invalid. Now what?

If a will is held to be invalid after a will contest, one of two things will happen. If the deceased person executed another will prior to the invalidated will, the prior will is admitted to probate, and the property is distributed according to that will. However, if the person had no prior will or if that prior will was revoked by an act other than the execution of the now invalidated will, the property will pass by the laws to intestacy (the laws governing the distribution of a person’s property when there is no will).

For more information on Challenging A Will In Florida, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (727) 827-7777 today.

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A caveat is a notice that an interested person, usually a creditor, files with the court under a person’s social security number, that requires the court to notify the filer (called a caveator) if any other probate matter is filed under the same social security number.

Timing. A creditor can file a caveat only after the person has passed away. However, any other person may file a caveat at any time. For example, imagine a person’s child from a first marriage only has sporadic contact with his or her parent. Imagine also that this person is in a second marriage. The child may be concerned that his or her parent will pass away, the new spouse will open probate and make false representations to the court, and the estate will be probated and distributed before the child has a chance to intervene.

Effect. If a creditor files a caveat, the clerk simply informs the creditor when letters of administration are issued and the contact information of the personal representative. However, if anyone other than a creditor files a caveat, the court cannot admit the will to probate or appoint a personal representative until the caveator has been notified.

Out-of-State Caveators. If an out-of-state party wants to file a caveat, he or she cannot do so unless he or she is represented by a Florida attorney or he or she designates a Florida agent to serve as his or her agent.

For more information on Filing A Caveat In Florida, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (727) 827-7777 today.

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Florida allows a person making a will (“the testator”) to attach a “separate writing” to his or her will to devise (give away) his or her tangible personal property. Lawyers refer to these writings as personal property memos.

These personal property memos are ideal for giving away small, valuable, or meaningful items. For example, Mom has some valuable jewelry she wants to leave to her children. On Mom’s personal property memo, she can write that she wants Child #1 to have all her diamonds, and she wants Child #2 to have all her pearls.

There are some requirements of a personal property memo. First, the personal property memo has to be signed at the bottom by the testator. Second, the testator has to describe each item with reasonable certainty so the personal representative knows which item the testator is referring to. Third, the testator has to describe the person that want to receive the item with reasonable certainty so the personal representative knows who is supposed to receive the item.

Personal property memos are very handy because they can be changed as many times as the testator wishes. The testator can rewrite his or her personal property memo with no effect on the will. However, if the testator wants to make a change to the will, the will has to be amended or changed entirely.

For more information on Personal Property Memos In Florida, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (727) 827-7777 today.

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If your property is passing according to your will, your will has to go through a court-supervised process called probate. However, simply because you have a will or your will is being administered by probate, this does not mean that all your property is or has to be in what is called your “probate estate.”

The idea of your “probate estate” is pretty straightforward. This is all the property that will pass to your beneficiaries through probate.

However, not all of your assets may pass through probate. There are other options (sometimes better options) that you have for passing your property to those you wish to receive it.

First, you may wish to pass some property “by operation of law.” This means that upon your death, the person who designate to receive certain property will receive the property automatically. For example, if you have a life insurance policy, you likely have listed someone on the policy who you wish to receive the proceeds of the policy at your death. These proceeds are not included in your probate estate.

Second, property titled in certain ways (such as joint tenancy with the right of survivorship, life estates, or lady bird deeds) will pass outside of probate.

Third, property that you have put in trust prior to your death will pass under your trust agreement and be administered by your trustee instead of by a personal representative appointed by the court. None of this property is included in your probate estate.

You should understand what is or is not included in your probate estate for several reasons. First, probate is a slow process, and it may take many months for your beneficiaries to receive your property. The alternative forms of property transfer will be much quicker. Second, everything in your probate estate goes into the probate file and is public record. The alternative forms of property transfers are private. Third, creditors can only make claims against property in your probate estate (unless they have a lien).

While there are many reasons to have a will, these alternate methods can be used to your advantage to make sure your property is distributed the way you want it be distributed.

For more information on Probate Vs. Non-Probate Assets, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (727) 827-7777 today.

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It is not uncommon for people to believe that they can avoid having a will or other estate planning documents. One reason people avoid estate planning is to avoid the idea of their own mortality. Another reason is that people want to avoid the expense of estate planning. Yet still other people believe that their affairs can be handled without estate planning documents or the assistance of an attorney.

Well for some this avoidance may work out, more often than not things do not go as planned.

Why Do I Need A Will?

A will is a legal document in which you identify those individuals who are going to receive your property at your death. You also designate your personal representative who will administer your estate. Some believe that the necessity of a will may be avoided by passing property “by operation of law.” An example of passing property by operation of law would be having your name and the name of your spouse or child listed as joint account holders on your checking account. However, the belief that this type of property transfer is appropriate for all things is misguided.

Often, people attempt and fail to pass property by operation of law. For example, you purchase a new car and, in order to avoid having a will, you add one of your children’s name to the title. Even if your child is listed on the title you each own 50% of the car. Not only that, but you have just made a gift of 50% of the value of the vehicle to your child, which may require you to file a gift tax return. At your death, your child will still have to probate your estate to have the title of the car transferred to be completely in his or her name. So even though you have avoided the expenses of having a will written, your child will have to pay for an attorney to probate your estate.

There are other very important reasons for creating a will. Unexpected, unintended, and unanticipated things often happen. What if you have a car correctly jointly titled with a child, but you sell that car and do not follow through with the process on your new car? What if your child predeceases you? What if you are in a car accident you cause, you pass away, and your child is personally liable for the damage?

Sometimes, you may inherit property you either did or did not expect to inherit. But what if you no longer have capacity to contract when this happens and you cannot, as a matter of law, change title or transfer the property to your child?

There are too many contingencies and risks of not having a will. Drafting a will is the only way to be sure that your estate will be distributed according to your wishes.

Why Do I Need A Durable Power Of Attorney?

A durable power of attorney is a legal document that empowers someone you choose to act in your place even if you become mentally incapacitated. Your agent under your power of attorney is the only person who will be able to handle your affairs if you become incapacitated. Many struggle with the idea of handing power their financial matters to another person. But, again, there are many risks to not having a durable power of attorney.

For example, imagine a person has Alzheimer’s disease and can no longer manage his or her own affairs. This person can no longer live on their own and needs to be moved into a nursing facility. Since this person turned 65, he or she has been on Medicare; however, Medicare will not pay for this person to be in a nursing home. Now, in order to be able to afford a nursing home, this person needs to create a Medicaid Qualifying Income Trust as well as apply for Medicaid. An agent under a Power of Attorney is the only person who can achieve this if the person has lost his or her capacity to contract. Not even a spouse may be able to do this for you.

Why Do I Need Health Care Documents?

One important health care estate planning document is a living will. A living will is a document which details your desires regarding your medical treatment in extreme circumstances including a terminal condition, an end-state condition, or a persistent vegetative state. Another important health care estate planning document is a designation of health care surrogate, which is a document naming another person to act as your representative to make medical decisions for you either concurrently with you or after you lose the ability to make medical decisions for yourself. A designation of health care surrogate also includes your instructions about any treatments you do or not do want.

Some people have very strong beliefs concerning end of life decisions. Think, for example, of the Teri Schiavo case. For those that wish to not have their lives artificially prolonged or have religious objections to certain procedures, these health care estate planning documents are critical. Doctors have a duty to use all means necessary to keep you alive unless you have the correct legal documents to relieve them of that duty.

How Often Do These Documents Need To Be Revised?

Your estate planning documents should be reviewed every time there is a major change in your life (ex. death of a spouse, marriage, or birth of a new family member) if this affects your estate plan. If no major life changes take place, your will should be reviewed every 5 years at least.

The reasons for this are simple: the laws change and your wishes may change. It is not uncommon for people to try and revise their own wills. However, what often happens is the will is considered revoked and your property passes according the default rules instead of as you intended. Furthermore, presumptions in the law may change, which may change how a court construes your documents. The only way to be sure that your estate planning documents will serve your needs to seek the advice of an estate planning attorney.

For more information on Importance Of Estate Planning, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (727) 827-7777 today.

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In general, a personal representative (“PR”) is the person who distributes the property of a deceased person.

A person can become a PR for a loved one in a couple of different ways. First, people who write wills (“testators”) will usually name someone in their will that they want to be the PR. Testators like to name PRs in their wills so they know someone they trust will be taking care of their last wishes.

However, not everyone makes a will. For people who pass away without a will, Florida has a statute that lists the people a court would choose first to be the PR. The list starts with a person nominated by a will, then a person selected by the majority of the beneficiaries (the people who are going to inherit), and then those people most closely related to the deceased person who are the best qualified. For example, if Mom has three children, the three children can decide together to make Child #1 the PR, and the court will likely choose Child #1 to be PR as long as he or she meets the other requirements.

Florida has additional requirements to be appointed as PR. First, Florida residency is required if the person is not a family member; however, family members from out-of-state can serve as PR. second, a PR cannot have any felony convictions. Third, a PR has to have the capacity to perform his or her duties. Fourth, a PR has to be at least 18 years old.

Of course, people who have a large estate can choose a bank, corporation, or trust company to be their PR. Usually, one of these types of entities is chosen if the estate contains complicated assets or transactions such as an estate with a trust, securities, or multiple pieces of real property (land or houses).

Once a PR is appointed, the court issues Letters of Administration, which give the PR the power to administer the estate. The PR will file a Notice to Creditors in some instances and pay all final bills and debts of the deceased person. Once that is done, the PR has other duties to prepare the property for distribution such selling houses and other property, collecting items, making claims against life insurance, etc. The PR is also responsible for filing the deceased person’s taxes for the last time. In some cases, the PR may have to file a Federal Estate and Gift Tax Return.

After all the property has been properly distributed, the PR will be discharged from his or her duties, and the probate will be closed.

For more information on Personal Representative In Florida, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (727) 827-7777 today.

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Ancillary probate takes place when a probate needs to be opened for a non-resident of Florida. Ancillary probate is necessary in Florida in three different circumstances:

1. When a non-resident dies leaving assets in Florida;
2. When a non-resident dies leaving credits due from residents in Florida; and
3. When a non-resident dies leaving liens on property in Florida.

Florida law requires that a personal representative be appointed to administer an ancillary probate. The requirements to be a personal representative also apply to ancillary probate.

For more information on Ancillary Probate In Florida, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (727) 827-7777 today.

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The federal estate and gift taxes are companion taxes the federal government uses to tax the transfer of wealth from one person to another. The estate tax is a tax on property passed to your beneficiaries at your death while the gift tax is a tax on property you gift, or give away, while you are still alive. These two taxes work together to make sure money is not transferred from one person to another without tax consequences.

How the Gift Tax Works?

The gift tax starts with the basic idea that you should pay a tax to the government every time you give someone a gift. In actuality this almost never happens because of the yearly exemption. The government allows you to give $14,000 each year to anyone. What this means is you could give $14,000 to 100 different people and not have to pay any gift tax. There are also other exemptions such as directly paying for someone else’s medical care or education. Any gift beyond these exemptions must be reported to the government by filing a Form 709. You will be able to apply your lifetime estate and gift tax unified credit.

How the Estate Tax Works?

The estate tax is the tax your estate pays when you pass property at your death. Various provisions of the tax code define what property you own at your death is or is not included in what is referred to as your “gross estate.” Your gross estate is the amount used to calculate your estate tax owed. Your personal representative will file a Form 706 as part of the administration of your estate to pay any estate tax owed.

The Unified Credit

The estate and gift taxes have one unified tax credit that you can apply to all transfers you make in the form of gifts or inheritance. Currently, the IRS allows to transfer $5,450,000 without paying any tax. Any transfer above $5,450,000 are taxed at a rate of 40%.

Important Distinction

The major difference between the gift tax and the estate tax is the way the tax is paid. When you file a gift tax return (Form 709), you as the filer will pay any tax owed. To illustrate, you give someone $100 and then you pay $40 in tax. The estate tax works the other way. Because you have passed away, any taxes you owe are taken out of your estate. For comparison, you die leaving $100 and then your estate pays $40 in taxes; now your estate is only worth $60.

Why is This Important?

There are nuances in the Internal Revenue Code that may create advantages to transferring your money in different ways. For example, it may make sense to give $100 to your children now rather than holding on it the money until you die because if the money collects interest and is $200 at your death, you will have to pay more taxes. Alternatively, let’s imagine you own $100 in stock. Overnight the stock market booms and your stock is now worth $1,000. If you give your stock to your children before you pass away, when your children sell this stock there basis is $100, meaning that they will have to pay a capital gains tax on $900 if they sell the stock for the $1000 it is now worth. However, if you pass this stock to your children when you die, your children will receive a step-up in basis so their basis will be the value of the stock when they receive ($1,000).

It is also important to remember that when you add someone’s name to a property title, you are making a gift to them if they did not give you money for the item. For example, you purchase a new car, and you decide to put your child’s name on the title so they could have the car if anything happens to you. You just gave a gift of half the value of that car to your child. This may cause you to have to file a gift tax return.

For more information on Federal Estate & Gift Taxes In Florida, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling 727-827-7777 today.

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A pretermitted spouse or child may have certain rights under Florida law.

A pretermitted spouse is a spouse who the deceased person married after his or her will was executed and who was not provided for in the deceased person’s will. A spouse who is pretermitted will receive a share in the deceased person’s estate equal to the amount he or she would receive under the intestate statute unless the pretermitted spouse signed a pre- or post-nuptial agreement or the will specifically states that the person had the intention not to make a provision for the spouse.

Substantially similarly, a pretermitted child is a child of the deceased person who was born or adopted after the deceased person executed his or her will and who was not provided for in the deceased person’s will. A pretermitted child would receive the equivalent of his or her intestate share with the exception of a couple of contingencies. First, if the child was given a part of his or her parent’s property equal to the value of his or her testate share, the court will not give the child another share. Second, if the deceased person left substantially all of his or her property to the child’s other parent, the court will not award the child any share of the estate. Third, if the will makes the omission intentional, the child will not receive anything.

For more information on Pretermitted Spouse Or Child, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (727) 827-7777 today.

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