Video Summary

If I am married, do all of my deceased spouse’s assets pass to me?  Well, if he left a will leaving everything to you, the answer is yes, but the myth is that this happens automatically, and that is not true. You may have to go through a probate proceeding in order to obtain the assets. Depending on who his heirs are, as to whether or not the spouse will receive all of the assets or not. So if he has a will, the will, will control who will receive what assets.

We also have to consider homestead, and that if you’re survived, and the homestead property is just in the decedent’s name, well, then, he can only leave it to the spouse if he wants to do that as far as his will is concerned.  If he doesn’t leave it to the spouse, it is controlled by the Florida Constitution, the laws of the State of Florida, which gives the spouse a life estate or can elect to take a half interest in the property.

As far as the other assets are concerned, the state of Florida sets forth a will for you, or says who receives all the assets.  If the decedent is only survived by a spouse and there are no minor children, any children of the decedent, well, then, all the assets will pass to the surviving spouse. However, a probate proceeding will be necessary.

I don’t have time to go through all the various scenarios as far as if there are children of a prior marriage or children of that marriage as to how much the spouse receives and how much the children will receive, but the myth that it happens automatically is merely that – a myth – and if you lose your spouse, and they have assets in their name other than motor vehicles, please give me a call at 727-847-2288 so we can discuss what would be necessary and who will receive the assets.

Thank you.

Video Summary

What are the rights of the spouse in a home when their spouse dies?  We first have to look at how title is held to the property.  If it is held in their joint names as husband and wife, then the property automatically goes to the spouse, and all that is needed is to record a death certificate.

If the title is just held in the spouse’s name alone who passes away, then it is considered homestead property, and is controlled by the Florida Constitution and the laws of the State of Florida.  And if you’re survived by a spouse and minor child, then the spouse receives a life estate and a remainder interest vest in the children.  You cannot devise it or leave it in your will to anyone else.  The spouse does have an election to make, and they can elect to take a half interest in the property, but they must file that election within, I believe, six months of the date of death of the spouse.  So if you do lose your spouse, you need to contact an attorney right away to discuss your rights in the property.

Now if your spouse leaves a will, and the deceased spouse is not survived by minor children, then the decedent can leave in his will the property to his spouse.  That is the only person he can leave it to.  He cannot provide for life estate or anyone, anything else, and so it is an improper devise to leave it to anyone other than your spouse, and then it would be controlled by law, which would mean that the spouse would have a life estate or elect to take a 50 percent interest in it, and the other remainder interest would pass to the adult children of the decedent.

So it’s a little bit complicated as far as homestead is concerned; misunderstood by a lot of attorneys.  So if you lose your spouse and he owns the property in his name alone, I urge you to give me a call; set up an appointment, and let’s review the situation right away.

My phone number is 727-847-2288.

Video Summary

How does a lady bird deed help my heirs avoid probate?

Well first let’s define what a lady bird deed is.  That is a name that an author of a treatise gave to a life estate deed.  A life estate deed means that you convey your property to your children or to anyone. However, you reserve to yourself a life estate, meaning that you own the property, or you get to use the property during your lifetime.

Now what is known as a lady bird deed has additional powers besides being able to use the property during your lifetime. Those powers include, which are reserved to you with your life estate is the ability to sell the property without the joinder of these remaindermen.  So that is the definition of a lady bird deed when we’re talking about it.

So how does it avoid any kind of probate when a person passes away?  Well, you signed the deed and you conveyed it to whomever, your children or your heirs and reserved a life estate.  And you have certain rights to convey or transfer the property during your lifetime.  But if you do not sell or convey it during your lifetime upon your death all they need is a death certificate and they will own the property, “they” being whomever you have conveyed the property to.  And the deed, they will own it, and all they need to do is record the death certificate and they will automatically own the property.

So that’s how your heirs will avoid any probate proceeding if you sign a lady bird deed conveying the property to them during your lifetime.

If you would like to discuss this further well give me a call at 727-847-2288.  Thank you.

Video Summary

What is the difference between a formal administration and a summary administration? Well first, both of those are probate proceedings and that’s probably a four-letter word to most folks in that they don’t want to spend any money on lawyers or pay the government any money. A lot of that has been blown out of proportion, I think, over the years by the Reader’s Digest where they say that the government takes half the money and the lawyers take the other half, and it takes them six years to do it. In Florida, that is not the case. First, there are no estate taxes in Florida and furthermore the attorney fees can be negotiated. The statutes suggest that an attorney fee for handling an estate is 3% of the assets that are being probated and that usually has to do with the formal administration.

Formal administration is when you have creditors and you file a notice to creditors send it to the creditor and give them a period of time, which is three months from the date you first sent out a notice of the publication of creditors, and they can file their claims in the estate. So the personal representative will pay the claims and then the administration costs. There are no taxes unless your estate is in excess of $5 million dollars and then they distribute the balance of the money to the beneficiaries.

There is a short form of administration called a summary administration and that’s available when the assets that are subject to probate are less than $75,000 and some provision has been made to pay any creditors or there are no creditors involved. Usually this is done for a flat fee rather than based upon a percentage. If there’s homestead property and it’s passing to the various children or heirs of the decedent, that’s not counted toward the $75,000. Usually those fees are in the neighborhood of about $2,000 or $2,500 in attorney fees for summary administration plus the court costs.

So a formal administration will take probably four to six months and here again the attorney fees will be in the neighborhood of 3% of the assets with certain minimums of about $3,500 plus court costs. So if you need to have an estate probated, give us a call at 727-847-2288 and we’ll be glad to discuss what the fees will be, how long it will take and what assets are subject to administration. The big thing is to do some planning ahead of time to avoid having to worry about probate, so here again, give us a call at 727-847-2288.

Thank you.  

Video Summary

What are the estate taxes for 2013?  Everyone’s heard a lot about the fiscal cliff.  Well, what happened as far as our estate taxes?  They were due to be reduced to $1 million, meaning that if your estate exceeded $1 million, there would be Federal estate taxes.  Well, in the bill that was passed through Congress, they adopted an exclusion for Federal estate taxes of $5 million, which takes care of most of my clients anyway.  And so if you have less than $5 million in assets whenever you pass away, there is no Federal estate tax.

Florida does not have an estate tax.  And in fact, the $5 million has been adjusted for inflation, so for the year 2013, you can have up to $5.25 million and have no estate taxes.  It even gets better than that if you’re married and you leave all your assets to your spouse.  When your spouse passes away, the two of you can leave to your children or whomever you would like up to $10.5 million.  That’s called portability, meaning that the unused portion of the estate tax exemption that you did not use, that portion of the $5.25 million, can be transferred to your surviving spouse so that that can be applied to the assets which they leave behind for your children or whoever they leave them to.

So what does this mean to you?  If you already have a trust, you need to call and make an appointment and come in and see about us revising your trust because more than likely, it has a provision in there that you provide that  your assets are to be held in an irrevocable trust upon your death for your spouse.  That was in an effort to avoid estate taxes when it was less than the present dollar amount.  And you probably want  your spouse to have the use of all those funds and discretion, which they will not have under your current trust provision.

So I urge you to set up an appointment to review your trust documents.  So give me a call at (727) 847-2288 and I’ll be glad to check with you about the taxes and also set you up an appointment to review your trust.