THE ANDERSEN FIRM A PROFESSIONAL CORPORATION. Probate, Trust Administration and Litigation in Florida

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1 ATTORNEYS AT LAW THE ANDERSEN FIRM A PROFESSIONAL CORPORATION Probate, Trust Administration and Litigation in Florida New York Office 110 E 37 th Street New York, NY South Florida Office 500 E Broward Blvd. Suite 1600 Ft. Lauderdale, FL West Florida Office 7273 Bee Ridge Road Sarasota, FL Tennessee Office 862 Med Tech Parkway Suite 200 Johnson City, TN The Andersen Firm, A Professional Corporation, All Rights Reserved. Revised 4/16/14

2 The Andersen Firm A Professional Corporation Any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

3 The Andersen Firm A Professional Corporation AV Preeminent Rated Law Firm Practices in Estate Planning, Estate Settlement, Estate Litigation, Asset Protection, and Elder Law

4 Probate What is Probate? Court supervised process of gathering up the assets of a deceased person (called the decedent ), paying the decedent s final bills, and then distributing the decedent s remaining assets in accordance with the decedent s will, if any, otherwise in accordance with Florida Law. When is Probate Necessary? When the decedent has left assets titled in his or her sole name

5 Probate cont. What if the decedent has not made a will but has left assets in his or her sole name? Probate will be required whether or not the decedent has left a will since the laws of the State of Florida provide a Will for those who chose not to make one.

6 Florida Statutes for Intestate Estates If the decedent IS survived by: 1. A Spouse and no descendents All probate assets to spouse 2. A Spouse and children all of whom are the children of the surviving spouse 100% of the Probate Estate passes to the Surviving Spouse. 3. Lineal descendants, one or more of whom are not lineal descendants of the surviving spouse, then the surviving spouse receives one half of the estate and the lineal descendants receive the other half. 4. Survived by children an no spouse all equally to children, per stirpes

7 Florida Statutes for Intestate Estates cont. If the decedent is NOT survived by: 1. A Spouse or any descendants, probate assets are distributed equally to parents, if living, otherwise equally to siblings, per stirpes 2. A Spouse or any other surviving heirs, the probate assets are distributed to the Chief Financial Officer of the State of Florida, to be deposited into the State School Fund.

8 3 Types of Probate Administration in Florida 1. Disposition Without Administration For estates that have personal effects only. 2. Summary Administration For estates that have total assets less than $75, Formal Administration For all other estates.

9 Costs of Probate Estates 1. Attorneys Fees deemed reasonable per Florida Statutes Estates having value of $100,000 to $1M at 3%; $1M to $3M at 2.5%; $3M to $5M at 2%; $5M to $10M at 1.5%; Estates above $10M at1% 2. PR Fees deemed reasonable per Florida Statutes Commission payable at a rate of 3% for estates valued below $1M; $1M to $5M at 2.5%; $5M to $10M at 2%; Estates above 10M at a rate of 1.5% 3. Accountant Fees Based on an hourly rate deemed reasonable by the State Board of Accountancy 4. Other Fees Appraisals (real property, personal property, business interests); storage of personal effects until distribution (records, autos, boats ect.); movers; shredding fees; wire transfer fees; court reporters; sect. of state fees; certified mailings.

10 Problems with Probate Estates 1. Privacy Probate Estates are public record! Example Ted Williams 2. Time Usually takes 6-18 months or longer depending on the size of the estate. Minimum of 1 year if estate tax return is due.

11 Probate Avoidance Establish a Revocable Living Trust Prior to death If the decedent successfully established and funded a revocable living trust, probate of the decedent s estate will not be necessary; however, if one or more of the decedent s assets were left out of the trust, probate of those unfunded assets will be necessary. Note: If the decedent successfully funded all of his or her assets into the trust prior to death, probate will not be necessary, however, the decedent s trust will still need to be settled in a manner similar to probate but without the supervision of a court.

12 Probate Avoidance cont. Whole Life and / or Term Life Insurance Life insurance proceeds never go thru probate. Unless the estate is the beneficiary.

13 Settling an Estate or Trust The Following is a Checklist of the steps that should be taken when settling an estate or Trust Some of the steps will be unique to settling an estate and some will be unique to settling a trust, and some will be necessary for both estate and trust administration Note that the person responsible for settling an estate is called the PERSONAL REPRESENTIVE ( PR ) and the person responsible for settling a trust is called the SUCCESSOR TRUSTEE ( TRUSTEE )

14 Settling an Estate or Trust Checklist The Decedent s will should be located and filed with the court; in Florida jurisdiction over probate is within the Circuit Court, so the will should be filed with the Circuit Court located in the county where the decedent resided at the time of his or her death. The PR or Trustee should locate and take possession of the Decedent s records. The PR or Trustee should take measures to protect the Decedent s personal effects and other property (e.g., make sure that no one is driving the Decedent s car or boat). Any interested person can petition the court for an order appointing a PR and issuing Letters of Administration to the PR; if the decedent left a will, the PR will be named within the Will; if the Decedent did not leave a will, Florida law provides the priority as to who should be appointed (e.g., surviving spouse; person selected by a majority of the beneficiaries).

15 Settling an Estate or Trust Checklist cont. The PR must publish a Notice to Creditors in a local newspaper two times; the publication is necessary to put unknown creditors on notice of the Decedent s death so that such creditors can collect their debts. The PR must forward the Notice of Administration to all beneficiaries and the Notice to Creditors to all creditors. The Trustee of a revocable living trust must file a Notice of Trust with the court; this is the only court document required to be filed by the Trustee and puts the Decedent s creditors on notice that the trust will be liable to pay the Decedent s debts. A copy of the trust agreement does not have to get filed with the notice. The PR must obtain a taxpayer identification number for the Decedent s estate; the Trustee must obtain a taxpayer identification number for the decedent s trust.

16 Settling an Estate or Trust Checklist cont. The PR must open an estate checking account; the Trustee must notify the Decedent s bank that he or she is the Successor Trustee of the Decedent s trust. If assets are located outside of Florida, the PR or Trustee must determine how these assets need to be handled; in the case of real property located outside of Florida and titled in the Decedent s sole name, ancillary probate may be necessary. The PR or Trustee should redirect the decedent s mail. The PR or Trustee should determine if the Decedent was due any unpaid salary or any death benefits from the Social Security Administration or Department of Veterans Affairs.

17 Settling an Estate or Trust Checklist cont. The PR or Trustee should obtain information on all assets owned by the Decedent, including those in the Decedent s sole name, in joint names with other persons, in trust, life insurance proceeds, retirement accounts and business interests. If the Decedent had an ongoing business, the PR or Trustee must determine what to do with the business (e.g., shut it down or sell it) The PR or Trustee must order appraisals of the Decedent s real property and personal effects. The PR must file an inventory of the Decedent s estate assets within 60 days of being appointed.

18 Settling an Estate or Trust Checklist cont. If the estate or trust administration is complex and expected to continue for more than one year, the PR or Trustee should consider filing interim accountings to keep the beneficiaries apprised of the status of the estate or trust. If no federal estate tax return is due, the PR must file a final accounting and Petition for Discharge within one year of the issuance of the Letters of Administration. If a federal estate tax return is due, the PR has one year from the date the return is due to file a final accounting and Petition for Discharge. The PR or Trustee must make the final distributions of the Decedent s property and obtain receipts from the beneficiaries.

19 Settling an Estate or Trust Checklist cont. The PR or Trustee must determine if a federal estate tax return will be necessary (IRS Form 706); if a 706 is necessary, it is due 9 months after the Decedent s date of death; if estate tax will be due, the PR or Trustee must determine how the tax will be paid (i.e., will any assets need to be sold or will insurance proceeds need to be allocated to pay tax) The PR must investigate all claims filed against the estate to determine their validity. The PR or Trustee must file the Decedent s final income tax return and fiduciary tax returns (form 1041) will also be due.

20 Uses of Insurance in Settling an Estate A Second-to-die policy can be used to pay the estate taxes for an taxable estate. Example $11 million estate, exemption amounts currently $5.12 million per person. Thus, with proper planning husband and wife can pass $10.24 million, total, estate tax free. Remainder (Roughly $750k) will be taxed at 35%. Roughly $260k is due in taxes 9 months after second spouse passes. A $500k second to - die policy can be used to pay taxes owed. Life insurance can also be used if there are concerns about estate liquidity and to provide for minor or dependant children.

21 Uses of Insurance in Settling an Estate cont. Irrevocable Life Insurance Trusts for Life Insurance Policies Irrevocable Life Insurance Trusts (ILITS) will keep the insurance policy out of the insured's taxable estate. ILITS can also provide generation skipping advantages to keep the proceeds out of the estates of the children, grandchildren or later generations. ILITS provide creditor protection Example If a child who owns a policy on their parents is sued, the state laws exempting policies on an insured s own life, do not exempt policies owned by a child on a parent. A trust can provide creditor protection so that the child s creditors cannot get to either the policy or the proceeds.

22 Probate and Trust Litigation There are two main categories of contesting the contents of a Decedent s Will or Trust: 1. Undue Influence 2. Lack of Mental Capacity

23 Contesting the Contents of a Will or Trust Undue Influence Undue Influence is the most frequent legal basis for challenging a Will or Trust. Undue Influence Over persuasion, duress, force or coercion to such a degree that there was a destruction of free agency and will power.

24 Contesting the Contents of a Will or Trust Undue Influence cont. Three factors to consider regarding Undue Influence: 1. Undue Influencer is a substantial Beneficiary of the Decedent s Will or Trust. 2. Undue Influencer held a confidential relationship with the Decedent (e.g., a child, a friend or business partner) 3. Undue Influencer actively procured the Decedent s Will or Trust. (e.g., located attorney to draft will or trust; attended meetings with attorney; held original documents)

25 Contesting the Contents of a Will or Trust Undue Influence cont. One should also should consider the naturalness of the disposition to the Undue Influencer compare the final, questionable Will to any prior Wills to assess any dramatic change in the disposition of the Decedent s estate.

26 Contesting the Contents of a Will or Trust Lack of Mental Capacity In order to establish sufficient mental capacity to sign a Will or Trust, the person making the will ( Testator or Testatrix ) or Trustmaker must understand the nature and extent of his or her property to be disposed of and their relationship to those who would naturally benefit from the Will or Trust ( Natural Objects of Bounty )

27 Contesting the Contents of a Will or Trust Lack of Mental Capacity cont. The person challenging the mental capacity of the Testator / Testatrix must prove that the person lacked mental capacity AT THE TIME OF EXECUTION evidence of lack of mental capacity around the time the Will or Trust was signed is taken into consideration but not sufficient to prove lack of capacity this is why lack of mental capacity is a statistically infrequent grounds for overturning a Will or a Trust since the burden of proof is so great.

28 Estate & Trust Litigation Avoidance Establish an estate plan early while there is no question of mental capacity. Review the plan on an annual basis and keep it up to date. Use a Revocable Living Trust and Fund ALL assets to avoid Probate. Choose Personal Representatives and Trustees carefully (e.g., a second marriage surviving spouse as sole Trustee; problem child sibling or other family member as Trustee)

29 Estate & Trust Litigation Avoidance cont. Be wary of the disposition of personal effects this is what beneficiaries fight over the most since money is easy to value and divide but stuff is not (consider family members emotional attachment to items; consider leaving detailed instructions and lists; consider allowing the beneficiaries to divide the personal effects as they agree and if they cannot, then allowing the property to be sold or donated to charity). Beware of joint accounts when a joint account is established, clearly state if it is to be with rights of survivorship or for convenience purposes only.

30 Conclusion: First, clients must plan NOW! Second, this not One Size Fits All Planning clients must do a cost benefit analysis to see which techniques are right for them. Third, Clients should use a team of competent and trusted advisors, including Accountants, Financial Advisors and Attorneys in order to develop an appropriate Estate Plan to avoid Probate.

31 The Financial Advisors Easy 3 Step Process for Estate Planning 1. Call us at to set up an appointment for client. 2. Ask client for current estate-planning documents and forward them to The Andersen Firm (optional). 3. Ask clients to fill out snapshot questionnaire and forward to The Andersen Firm (optional).