How Do You Know If Someone Is Considered Legally Incompetent?
Video Summary
How do you know if someone is considered legally incompetent?
Well, I’m gonna take the easy road first, as far as that’s concerned. If you’re under the age of eighteen in the state of Florida, you’re not an adult, and so legally you’re not competent to contract. And so you’re not legally competent. And when this comes in to play is whenever you’re to receive a great deal of money, then it may require a guardianship. If the minor is to receive, let’s say from an estate, an inheritance and the amount of money is less than $15,000, then the natural parents can accept this inheritance in behalf of the minor child, or the minor who is legally incompetent.
Also, when it comes to contracting, you can contract with a minor, however it’s not legally binding on the minor. After he turns – any time before age eighteen, he can disavow the contract. After he turns eighteen, he has a reasonable time in which to disavow the contract, or he can ratify the contract after he turns age eighteen.
Now as far as people, other people who are considered legally incompetent, that usually comes with an incapacity hearing; and it’s related to a guardianship proceeding, wherein the judge has a hearing and has a panel of three professional – mental health professionals. I believe it’s a psychiatrist and some other people serve on a panel, and they have a recommendation after they interview the alleged incapacitated person. In a guardianship proceeding, they appoint a lawyer to represent this person, and as a result of being incapacitated, the person loses all of their rights. And so it’s a trial and in order for the judge to consider that, since it’s a drastic measure, many times the judge will not declare somebody totally incapacitated, may still give them the right to do certain things such as vote and other matters. But you tell whether or not someone is legally incapacitated or incompetent by an order, which the judge enters finding that they’re incompetent.
So if you have any questions about capacity, incompetency, give my firm a call. It’s 727-847-2288. My associate, Jaleh Piran-Vesseh is one who handles elder law and guardianships
- Published in Guardianship, Videos
Do You Have To Be Married To Be Entitled To A Partner’s Estate?
Video Summary
Do you have to be married in order to be entitled to a partner’s estate?
The answer is yes. The law does not, at this time provide that if you have cohabitated or are in relationship with someone, and you are not married to them, the law does not protect you when they pass away. They treat you as if you are a stranger and therefore you are entitled to no benefits. If you’re married, the law does provide that you’re entitled to certain rights. One is called an elective share; or if there’s no will, you’re entitled to certain benefits, depending on whether or not there’s any children or not. If there’s no children of the decedent, and you’re married to them, then you’re entitled to the entire estate.
Also, this has an effect on your real estate. If it’s your homestead property, as to whether you’re married or not, if you are married you have certain rights in the homestead. If the property is titled in the decedent. If you’re not married, you have no standing, or what we call standing, or right to make any claims against your partner’s estate. So if you – my suggestion is is that you need to set up a will conference or an estate planning conference to address the situation; and that I’ve seen this in the past, where someone’s been together for many years and they’ve lived as husband as wife, and then one of them passes away and they get nothing even though they’ve lived together.
Florida does not recognize common law marriages and that, unless they were established I think before 1964 or ’68. So rarely do you see a common law – I’ve never seen a common law marriage recognized in Florida.
So if you have any questions or like to do some estate planning, that’s the best way to handle it. My phone number is 727-847-2288.
What Does It Mean To Administer An Estate?
Video Summary
What does it mean to administer an estate?
To administer an estate relates to a probate proceeding. In order to administer someone’s estate, you need to petition the probate court to have their will admitted to probate, or if they die without a will, you petition to have a personal representative appointed. Then once the personal representative is appointed to administer the estate, they then need to file an inventory showing the assets. They need to give a notice to all the beneficiaries and heirs, so that anyone can challenge the will or have notice.
The personal representative, which used to be called an executor, also sends out a notice to all reasonably ascertainable creditors so that they can file their claims in the estate. The asset, the personal representative is not personally liable for any of the debts, and they are to pay the claims of the creditors out of the assets of the estate. And so once they pay the creditors or claims, and the claim period expires, which is three months, then they are to make distribution out to all of the beneficiaries of the estate and provide an accounting. And if the beneficiaries are in agreement with the expenses and what the personal representative’s done, they can consent or after given notice, the court would then discharge the personal representative from their duties as the executor or personal representative, and they no longer have any liability. So that’s what’s involved, as far as administering an estate, in three minutes or less.
So if you have an estate that you would like to have administered, give me a call at 727-847-2288. Thank you.
Is It Important To Have A Will Even If You Have No Assets?
Video Summary
Is it important to have a will if you have few or no assets that you’re aware of?
The answer to the question is is yes, it is important, and that you don’t know what assets you’re going to have when you pass away. You may be the recipient of an inheritance that you didn’t know about. You may be the lucky winner of a lottery, course you have to play to win. But you don’t know when you’re gonna pass away, so therefore you don’t know what assets you may have at that time. And the will gives you an opportunity to designate to whom you wish to receive those assets.
Also as far as owning assets that you may jointly own with someone else, and you anticipate that they’re going to survive you, well if they pre-decease you, well then you need to designate who you would want to receive that particular assets. Also, it’s important to designate who you would like to administer this. Many times, whenever you have family involved, there may be one particular child that can get along with everyone else; or you may decide that you want a complete – someone that’s not a family member to administer the estate to avoid any friction, and that way you can designate whom you would like to administer your estate. So I believe that it is important.
Also, whenever you do your will, there are other documents that will be discussed, such as a living will, a healthcare surrogate, and durable power of attorney, all of which are estate planning documents that we discuss and usually execute in conjunction with your will, which controls the end of life situation, as far as your estate planning.
So if you ‘d like to do a will, give me a call at 727-847-2288.
- Published in Estate Planning, Videos
What Type Of Assets Go Through Probate?
Video Summary
What type of assets go through probate?
Assets that are titled in the decedent’s name alone are the assets that go through a probate proceeding. Saying it another way, that if you have – the decedent owns assets, and they have a designated beneficiary, those assets don’t go through probate.
A prime example of that is a life insurance policy where they designate a beneficiary. Then that is controlled by that contract, and the money is paid the designated beneficiary. However, if you have a life insurance policy, you designated a beneficiary, the beneficiary dies before you do, well then that life insurance proceeds would be probated and follow your estate, your will or be probated and go to your designated beneficiaries.
Another example of assets that may be in the decedent’s name that don’t go through probate is if you set up a savings account that says it’s payable on death, or in trust for and you designate to whom you would want that bank account to go to. And even though the asset is in your name alone at your death, you by contract have designated who would receive the asset.
Also they have a similar designation, as far as a brokerage account. That’s called a TOD account, that’s transfer on death. So if you would designate someone to receive it upon your death, then it would not go through probate. However, if you have a brokerage account, savings bonds, any kind of stock that are titled just in the decedent’s name, then those assets would go through probate.
One of the things that I get many questions on is what about the household furniture and furnishings, and crystal, china, silverware, collectables – all of that is untitled personal property. And I cannot remember, and I don’t believe I’ve ever handled an estate wherein we had probated the untitled personal property assets. And that usually the beneficiaries will take care of doing that without going through a probate administration. Also, I just comment on that to my clients whenever we talk about that, that they can prepare a list and designate who they want to receive certain assets or specifically designate that; but the big question is, is the asset there whenever, you know, the decedent passes away, did they give it away beforehand, or did someone come in, another family member come in and remove it before you arrived and you knew you were supposed to get that. It’s very, very difficult to prove what was there and that you are to be the rightful owner. I say that this sort of the U-Haul effect, that whoever gets there first with the U-Haul is the winner, and so hopefully you all have a functional family when it comes to untitled personal property that can be distributed amongst the beneficiaries pursuant to the decedent’s wishes, or having it distributed equitably as far as all of the parties involved. It’s also problematic with untitled personal property, whenever it has sentimental value.
So the assets that have to be probated are whenever you have a titled asset just in the decedent’s name alone. There are some other exceptions, such as automobiles, that can be transferred without going through a probate proceeding. So if you have questions about probate, well give me a call at 727-847-2288.