Probate Litigation

Estate planning is the process of planning for the disposition of one’s assets to intended or specified beneficiaries. The ultimate result of estate planning is either Probate administration or assets passing outside of probate. For instance, all assets titled to one’s individual name will pass in accordance with the terms of the Last Will and Testament (without court supervision). Any assets titled to a revocable living trust pass outside of probate. Property titled jointly also passes outside of probate.

Probate litigation usually doesn’t begin long after a person passes and the Last Will and Testament is submitted to the court for probate. Probate litigation occurs within the formal probate administration and can arise for many reasons. The most common reasons for probate litigation are beneficiaries challenging the estate planning documents and/or power holders for undue duress, lack of capacity or breach of fiduciary duties by a personal representative and/or trustee.

Lack of capacity where a decedent was found not to have had the original capacity to execute a last will and testament. Undue duress often occurs with the elderly and involves a position of trust such as a non-familial caregiver named as the beneficiary of an estate a few days prior to that person’s death. In other words, the caregiver may have taken advantage of the weakening health or dementia of the deceased person in order to permeate themselves into a will to the detriment of the rightful heirs. Breach of fiduciary duty is known as any intentional fraud or negligence in the accounting or the distribution of estate and/or trust assets and/or the failure to safeguard estate assets reasonably and prudently.

Contact the Attorneys of The Noble Law Firm, P.A. to assist you with your probate litigation and/or other legal needs.

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Purpose of Incapacity Planning in Estate Planning

Incapacity planning plays a huge part in estate planning because most people become incapacitated before they pass away. Incapacity planning documents include the health care surrogate designation, living will and durable power of attorney. The health care surrogate designation appoints individuals who will make health-related decisions on your behalf. The living will states which life prolonging measures you prefer (or don’t prefer) your agents to take. The durable power of attorney appoints individuals who will make financial-related decisions on your behalf. In Florida, the financial power of attorney must be durable. In other words, it cannot “spring” into effectiveness upon incapacity. Other states, however, allow for the springing power of attorney. The durable power of attorney statute further dictates certain powers that must be separately initialed by you to be effective.

Most individuals don’t fully understand how important incapacity planning is in an estate plan. If you don’t plan for your incapacity, then you may subject your family and/or close friends to an expensive and time-consuming guardianship process. Where there are no documents stating agents for incapacity, agents must be appointed by the court. The guardianship process can easily cost thousands of dollars and can take months to even years with the clogged up court systems.

Even after a guardian is appointed, the court will continue to monitor the guardianship every year (pursuant to additional fees) and approve major actions and decisions made by the guardian(s). All this can be avoided by executing the above mentioned incapacity planning documents (health care surrogate designation, living will and durable power of attorney) along with your last will and testament.

Contact the Attorneys of The Noble Law Firm, P.A. to assist you with your estate planning and/or probate needs.

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Florida Homestead Protection

Florida is by far the best state for homestead protection, but do you really know what that means? Article X, Section 4 and Article VII, Section 7 of the Florida Constitution specify the parameters of the homestead exemption for Florida residents. A Florida resident is any person who lives in the state of Florida for six (6) or more months out of the year. In other words, Florida must be your primary residence and not a transient residence.

Article X, Section 4 is broken down into three sections. The first section protects a person’s primary home from the threats of outside creditors. To be protected the homestead property must be on no more than one-half (1/2) acres of contiguous land inside of a municipality and no more than one hundred and sixty (160) acres of contiguous land outside of a municipality. The valuation of the property is immaterial as the entire value of the homestead is protected. The second section states that the benefits will inure or benefit any surviving spouses of a homestead resident; therefore, the benefits survive a person’s death. The third section focuses more on internal threats and states that the Florida homestead is not subject to devise if the owner is survived by a spouse or minor child except the homestead may be devised to the owner’s spouse if there are no minor child. However, the property may be sold, but only if the spouse joins in the sale. This section essentially protects the homestead property from the outside and from the inside (whether from an outside creditor or a creditor within one’s familial structure).

Finally, the last benefit of the homestead exemption in Florida is essentially a tax break, which is provided for pursuant to Article VII, Section 7 of the Florida Constitution.

Contact the Attorneys of The Noble Law Firm, P.A. to assist you with your estate planning and/or other legal needs.

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Digital Estate Planning

Digital estate planning has become more of a necessity in the past few years with the emergence of the Internet and growing online presence. Nowadays, almost every individual has at least one online account, whether it is social media, e-mail or online banking. Have you every asked yourself what will happen to these online accounts when you pass away? This is an important question to ask as many of these accounts have personal information and/or auto payments that will need to be administered along with other assets.

In general, your estate plan consists of your declaration of health care surrogate, living will, durable power of attorney, last will and testament and in some cases a revocable living trust. Digital estate planning assets consist of online accounts such as banking, Facebook and Twitter, credit cards and could even include online shopping accounts such as amazon. Failure to inventory these assets may lead to your estate incurring unauthorized charges after your death and/or make it extremely difficult for your personal representative to access such accounts.

By creating a digital estate plan, you can help your family by:

  • Locate any accounts you have online;
  • Access those accounts or the information in those accounts;
  • Safeguard online data from hackers;
  • Attach financial value to your digital property; and/or
  • Distribute and/or transfer any digital assets to designated beneficiaries parties.

The first step to creating a digital estate plan is to itemize all of your online accounts and then inventory usernames and passwords (including recovery password information). Remember that your e-mail is the center of most of your accounts; therefore, it is most important to inventory your e-mail credentials. Next, you must choose a safe place for such data. This could include a safety deposit box, a personal safe or submitting the information directly to your personal representative. Having this information documented will allow your estate to bypass the problems of accessing your online accounts and make the probate process easier.

Contact the Attorneys of The Noble Law Firm, P.A. to assist you with your estate planning and/or probate needs.

 

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Estate Planning Strategies to Avoid Probate Administration

Estate planning is the process of anticipating and arranging for the disposal of a person’s estate during their lifetime. Estate planning also involves appointing pre-determined power holders who will help you with making medical and/or financial related decisions in the event you become incapacitated.

The major advantage to planning your estate is probate avoidance, however, not all estate planning strategies automatically allow you to avoid probate. For instance, simply having a last will and testament may not give you probate avoidance. The court will have to supervise the distribution of assets to your beneficiaries. Trust planning usually does avoid probate, however, if you don’t re-title certain assets to your revocable living trust, then your estate may still have to be probated to some extent.

Another great probate avoidance strategy, outside of trust planning, includes naming payable on death beneficiaries on your financial accounts. Property titled in joint tenancy or tenancy by the entirety (marital ownership) also avoids probate. However, be careful when using joint tenancy or tenancy by the entirety as probate will be triggered on the second death.

Using a combination of the above-mentioned strategies is the best estate planning. For instance, you can have a full estate plan with a revocable living trust, hold certain property jointly and/or have payable on death beneficiaries for some or all of your financial accounts. The best strategy really depends on your particular situation, therefore, it is best to have an estate planning attorney determine which planning strategies you should use.

Contact the Attorneys of The Noble Law Firm, P.A. to assist you with your estate planning needs.

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Advanced Estate Planning Strategies for Larger Estates

Advanced estate planning is a good option for individuals and families who have a larger net worths and desire not to pay significant estate taxes when they pass away. Such high net worth individuals generally have assets totaling near five million dollars, as the current federal gift tax exemption is $5.43 million per individual (doubled for married couples).

Keep in mind that the gift tax exemption does include lifetime gifts made to others (including family) that exceed the annual gift tax exclusion for the year the gift was made. In other words, gifts under the annual exclusion limit (which is currently $14,000) do not require disclosure and are not counted toward the $5.43 lifetime tax-free gifting limit. However, gifts over the annual limit must be disclosed by filing a gift tax return for the respective taxable year and are counted toward the $5.43 lifetime tax-free gifting limit.

Advanced estate planning tools may be used to reduce your taxable estate (or the taxable assets you own at death) by removing assets from your estate by voluntarily placing them in the control of other individuals such as trustees. Such transfer must occur inter vivos, or during your lifetime. One such advanced estate planning tool may be the irrevocable trust. The irrevocable trust may be used in conjunction with other planning tools such as the qualified personal residence trust and/or the irrevocable life insurance trust to achieve supreme planning objectives.

Another way to reduce your taxable estate which may have significant real estate is by using defective grantor trusts in conjunction with limited liability companies and/or other legal entities. By doing so, you transfer the ownership of the real estate you personally own and therefore reduce your taxable estate.

Contact the Attorneys of The Noble Law Firm, P.A. to discuss your estate planning needs and whether you should utilize advanced estate planning to distribute your assets to the next generation.

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Basic Estate Planning

Basic estate planning documents are necessary for every individual. Estate planning is the process of planning for an individual’s incapacity and/or death by selecting specific agents to make decisions for them when they cannot do so for themselves as well as detailing how one’s assets will pass upon their death. Failure to plan for your estate can lead to the necessity of court intervention and headaches for your family members who are already in duress or grieving.

The basic estate plan consists of the following: health care directive/surrogate document (for healthcare related decisions), living will (directions on life prolonging measures desired), durable power of attorney (for financial decisions) and a last will (appointment of personal representative and asset distribution directions). In certain cases a revocable living trust may be used in conjunction with a last will and testament. Not every individual needs both a last will and testament and a revocable living trust.

Individuals with significant assets who desire to have those assets bypass probate (or court supervision) should always consider utilizing the benefits of a revocable living trust. Revocable living trusts are also great for blended families where the marital assets are passing to children of different marriages. The revocable living trust allows the trustee to place certain restrictions on asset distributions to keep them safe from beneficiary disputes.

Individuals with significant assets may also take advantage of one or more irrevocable trusts that may allow them to lower their taxable estate, also known as advanced estate planning. In Florida, advanced estate planning is advisable for those individuals who have assets totaling near five million dollars, as the current federal gift tax exemption is $5.43 million per individual (doubled for married couples).

Contact the Attorneys of The Noble Law Firm, P.A. to discuss your estate planning needs and whether you should utilize advanced estate planning to distribute your assets to the next generation.

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