What Steps Can I Take To Avoid Probate?

 

Video Summary


What steps can I take to avoid probate?  Well, the quick answers for a lot of lawyers to offer to this is to set up a trust.  However, I have a little brochure that I pass out that’s called Simplified Estate Planning without the Necessity of a Trust in Order to Avoid Probate.

So you first have to look at the nature of your assets.  For example, if you have a life insurance policy it needs a beneficiary so that doesn’t go through probate ‘cause it’s controlled by the terms of the life insurance policy.

That’s the same that’s true about individual Retirement Accounts or IRAs.  You have a designated beneficiary so you don’t have a probate proceeding as far as IRAs, and that can also be said for annuities because the annuity contract will designate who’s to receive the death benefit or the benefits after the initial annuitant passes away.

When we turn to bank accounts, I suggest that you keep the bank accounts in your individual names and designate a payable on death for whomever you would like to receive it upon your death.

So the other designation is In Trust For or ITF account.  If you put someone on account as a co-owner, so if you’re by yourself and you put your son or daughter on the account with you, they become a half owner of the account and it could be subject to the claims of their creditors if they get in financial problems or domestic problems, being considered an asset in a divorce proceeding.  So I suggest that you simply designate a POD account or an ITF account for the benefit of that child or whoever you’d like to receive it and that will avoid probate.

One of the big sticking points is what do I do about real estate, particularly your home.  Well, what I have been doing is to prepare what they call a Life Estate Deed, whereby you convey your property to your child or children or whomever you would like to have it upon your death.  However you reserve all rights on the property during your lifetime.  You’ve reserved the right to sell the property and retain the assets.  Sometimes this is called a Ladybird Deed, and this again avoids probate.

And if you want your assets to be spread out over a period of time, let’s say you need a Special Needs Trust or a Spendthrift Trust for a child or a loved one that you want to care for, then certainly a trust is another way of doing it, although there may be a trust administration involved.

So those are some of the examples of how to avoid probate, is how you title your assets.  So if you’re interested in doing that give me a call at 727-847-2288.  Thank you.

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When Someone Dies, What Happens to His or Her Bank Account?

 

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When someone dies, what happens to their bank account?  Well, the first thing you need to do is to look at how the bank account is titled.  If the bank account is jointly held, then the bank account becomes the sole property of the survivor.  So, if there’s a Jane Doe and a John Doe on the account and John Doe passes away, then the account becomes the sole property of Jane Doe.  If the accounts are set up in the name of John Doe and POD, which stands for “payable on death”, to Jane Doe, then Jane merely presents a death certificate to the bank and then the bank will disperse the account to Jane Doe.

Also, another designation for bank accounts is ITF.  It’s called “in trust for” and if the account is set up under “John Doe, ITF, Jane Doe”, Jane Doe merely needs to present a death certificate to the bank and they should disperse the account to her.  If the account is just in John Doe’s name and there’s no beneficiary or co-owner, then the account must go through an estate proceeding. What type of probate proceeding will be necessary will depend on the size of the account, and it will go to whoever his heirs are.

If he does not have a bank account subject to administration it will go to the payment of creditors.  If he has a will, John Doe would designate who he would want to receive the bank account and it would be subject to administration again, but would go to the designated beneficiaries.  If he has none, then the account could go to the State of Florida.  If the account is never probated and  just sits, it could be considered abandoned property and after a very long period of time the state may receive it.  Many times heirs are contacted by various companies who locate abandoned assets and contact you about setting up an estate proceeding; of course, they’re entitled to a fee for finding these assets.

So, it depends on how the account’s set up as to who receives the bank account when someone passes away.  If you have any questions or if you have a bank account that a decedent owned, give me a call and I’ll be glad to assist you in recovering the bank account or handling the probate proceeding.  My phone number’s (727) 847-2288.  Thank you.

 

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What Assets Are Protected from Creditors When I Pass Away?

 

Video Summary

Hi.  I’m Chip Waller.  Many people are concerned about what assets are protected from the creditors when they pass away.  The primary asset that the creditors cannot reach is your home.  Many times your home is your most valuable asset.  Given this present economic recession and real estate bust, the value of your home has gone down substantially, and if there’s a mortgage on it, there may not be any equity, but that is an asset that is protected, and the creditors cannot reach the home if you leave it to your children or your grandchildren or relatives.

If you leave your house to your relatives, it doesn’t matter how much credit card debt or judgments or any other debt that you may have; they will not attach to the home, and it will be passed to your heirs.  If you leave it to a non-heir, then it can be reached by your creditors, and it’s called your homestead, and it’s protected under the Florida constitution.

 

 

If you’re interested in seeing about having your estate plan prepared either through a trust or a will, we can further discuss what assets are protected from creditors.  Please give me a call at (727) 847-2288.  Thank you.

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Does a Spouse Have the Right to Challenge a Will?

 

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Sometimes when a person dies, the question arises of whether the decedent’s spouse can challenge his or her will. This is particularly of interest of the spouse was not left anything in the will. According to the law, a spouse does have a right to a percentage of all assets the decedent leaves behind, so he or she can challenge a will in order to exercise that right.

The best protection if you do not want your spouse to have rights to your estate or you would like to stipulate a specific portion that he or she is entitled to is to execute a prenuptial agreement. Our firm does not currently deal with prenuptial agreements, but if you would like help in drafting a will to protect your assets, please call us at (727) 847-2288.

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Probate Video Index

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