What If A Person Dies With A Will And Both Executors Are Deceased?
Video Summary
What happens if a person dies with a will and both the executors are deceased? In that instance, the beneficiaries, the majority of the beneficiaries need to agree on who should be the personal representative. If that is not possible, then any one of the beneficiaries or any person that’s qualified to be a personal representative can file a petition to be appointed the personal representative and give notice to all the other interested parties. And if no one objects after they give formal notice which I believe is about 20 days, well then the court would then appoint whoever has petitioned for it.
If there is objection, well the court would then have a hearing to determine who would be appointed as the personal representative. So that’s how you resolve it whenever both the designated personal representatives are deceased. If we have an estate where the personal representatives do not act, whether they’re deceased or just not interested or don’t want to pay the attorney or anyone else, you can petition the court to have a curator appointed until such time as a personal representative is appointed.
The curator’s job is to maintain the estate and status quo by publishing the notice to creditors and administering the estate until a personal representative or may complete the administration of the estate whenever a personal representative has not been petitioned to be appointed.
If you have a problem with probating an estate and you’ve got deceased personal representatives or executors, well give me a call and we’ll be glad to help you out. Call at 727-847-2288.
What Happens When Someone Dies And There Is No Probate Administration?
Video Summary
What happens when someone dies and there is no probate administration? Well the Florida statues provide that if someone passes away that whoever has the will is supposed to deposit with the court. That does not mean that you have to have a probate proceeding.
Many times wills are not probated. The reason why is because the decedent does not own any assets that are in their own individual name. Many times, particularly in the husband and wife scenario the property is held in their joint name so all that’s needed is to record a death certificate in the public records which would show that the surviving spouse is receiving the, is entitled to the particular joint asset.
Or if they’re bank accounts that are joint or payable on death, then the bank simply distributes those or pays those amount to the joint owner of the account.
If there are assets in the decedent’s name, well then nothing happens and the assets will eventually be turned over to the state and then as abandoned property such as bank accounts, old life insurance policies and I’m not sure how many years have to go by before they are turned over to the state and they can always be retrieved by setting up an estate.
The other scenario is is if you have credit cards in the name of the decedent and then the question is, is well what happens as far as paying these bills if there’s not probate administration for the creditors to file their claims? If there’s no probate administration and the decedent owned debts well they just, the creditors have the option of opening an estate, of course they need to try and figure out if there are any assets that could be used to pay their debts. So a creditor can open up an estate if they so choose, if they’re owed any money however if no probate administration open and there are creditors, the creditors do not get paid since there’s no probate and no assets pay them.
Also the creditors’ claims are barred two years after the decedent’s death. Sometime probate administration doesn’t even take place until after the two years and the creditors’ claims are barred.
If you have a question about probate and what to do when someone passes away, well give me a call 727 847-2288.
Can A Parent Change Their POA If Their Agent is Not Cooperating With Their Instructions?
Video Summary
Can a parent change their power of attorney if their agent is not cooperating and following their instructions? Well, the simple answer is first is that yes, they may. They can change or revoke their power of attorney at any time, but let’s go back to what do we mean by agent. Whenever you execute a power of attorney or designating someone to act in your behalf and under the new power of attorney statute, that’s called referred to as your agent. Your agent can act in your behalf. That does not mean that you’re giving up any of your rights and you can still operate or you can still operate, but the agent is the one who can also act in your behalf.
The question that was posed is can you change who your power of attorney and the answer is absolutely, you can revoke it, advise your agent whoever you pointed that you no longer wish for them to act in your behalf. Give them notice. Usually I record the revocation in the public records and that way, you can then designate someone else to be your agent to act for you. Powers of attorney are usually referred to as durable powers of attorney. The reason why they’re durable is because you placed language in the power of attorney itself, the document that says that your appointment survives even if you’re incapacitated, so that parties do not have to determine whether you have your competency whenever the agent is executing documents for you which really may save a guardianship as far as that’s concern if for some reason you would become disabled, either physically or mentally.
Also powers of attorney are used just to simplify matters whenever folks want their child or their agent to be able to act on their behalf for whatever reason, but they are usually durable and can be changed or revoked at any time by the person who is giving the power of attorney to the agent. The new power of attorney statute, you can provide many powers in there even as to changing beneficiaries to comply within a state plan, empowering your agent to do Medicaid planning by setting up a Miller Trust, be able to deal with your 401ks, your IRAs and there’s many, many powers that you can give your agent. All of these powers need to be enumerated and they also need to be initialed by the person granting those.
You can also give your power of attorney to more than one person and designate that either of the parties who you designate can act in your behalf. If you have any questions or need to have a durable power of attorney setup, well give me a call at 727-847-2288.
- Published in Estate Planning, Videos
If I Purchase Property And Put My Childs Name On It Will It Count As Gifted?
Video Summary
If I purchase a house or property and put my child’s name on it, will this be counted as a gift?
Well, the answer is yes, you’re gifting them an interest in property. So when do you need to worry about gifting property to your children is if you would decide to apply for Medicaid. That may disqualify you for the amount of the gift if it happens within five years that you apply for Medicaid. Sometimes, people call me or want to do this in order to avoid probate, and they want to add their child’s name to a deed as joint tenants with right of survivorship. I did not suggest doing this. There’s life estate deeds or ladybird deeds that can take care of avoiding probate whenever you hold title jointly with your children. The problem is, they now own a half-interest in the property, subject to any creditors’ claims that your children may have. So it’s somewhat problematic, even worse if your children are minors. Then you won’t be able to sell it unless you have a guardianship, possibly. So it’s not a particularly good idea. So, the idea is to say what you’re trying to accomplish. Are you trying to avoid probate by doing this? What is the purpose?
So if you have a question about that before you add your child’s name to a deed or purchase property in their name, give me a call at 727-847-2288.
- Published in Medicaid Planning, Videos
What Happens If I Own Probate Property But Don’t Have A Will?
Video Summary
What happens if I own probate property but don’t have a will? Well first, as far as owning probate property, that means that, that’s property that is owned in your individual name and does not have a designated beneficiary or is not held jointly with anyone else. So, first we have to define what is probated property.
The next question that you have is, if I die without a will and you own property in your individual name, then you die what they call “in testate.” And the Florida statutes have set forth a will, in their statutes they say who will receives your assets. And it goes something like, if you’re married, your spouse they receive all or a half, depending on whether or not you have any children from another marriage. If you are not survived by a spouse then it will go to your children. If you die without any children and without a spouse well then, what we call, it ascends instead of descends and goes to your parents. And if they’re deceased well then it goes back down the family tree to your brothers and sisters or your siblings and their children.
So first off is, probated property is property, which you own in your individual name at the time of your death. And the Florida statutes had set forth who the beneficiaries are, so it must go through probate. The myth that the state will take the property is simply that, the state will not take your property unless you die with no heirs whatsoever, which is very, very remote. I don’t know that I’ve ever seen that happen. So if you got any call, if you have any questions about that, would like to have a will drawn up or do some estate planning, give me a call at 727-847-2288.