The Covid-19 Pandemic has changed the world as we know it and presented daunting challenges we have not encountered in our life time. It requires a total review of your estate plan and business entities to assure you are taking full advantage of Florida laws designed to protect your family and business.

The hard new reality: What plan was best for you prior to 2020 may not be what is best for you today

Take this three minute survey for a quick assessment:

If single: Special 2020 Asset Protection Checklist for Single Professionals

If married: Special 2020 Asset Protection Checklist for Married Professionals Note to All: Two important legal documents for everyone over age 18:

• An up-to-date Florida specific Durable Power of Attorney
• A comprehensive Florida Health Care Surrogate

Special note to all parents with college students and young adults:

We now know that COVID-19 can attack any age. The last people who consider a DPA and Health Care Surrogate mentioned above are young adults. If you are a parent with adult children over age 18, I urge you to convince your sons or daughters to secure these important legal instruments. For a flat fee, we are available to prepare these documents, review the key legal provisions with your adult children, and email them for signing.

We will get through this together, as we did after Pearl Harbor and 9/11, and will be a stronger, more united country. Stay well and stay safe!

You are named the personal representative (or executor in other states) and a loved one or family member has just died. No doubt these are difficult times, but thankfully there are many resources for help. The following is a checklist of initial important tasks to help guide you after the funeral or memorial service.

Note: You are not required to accept the Personal Representative duties. Before you can legally act on behalf of the estate you will likely need to secure Letters of Administration issued by a Florida probate court that officially designate you as the legal authority in charge of the estate. Therefore, you should not take action as Personal Representative before you know your duties and what potential claims you may face from estate beneficiaries and creditors. Consult a Miami probate attorney and see our 10 Basic Legal Rights for Beneficiaries Under a Florida Will.

First Priority Action Items

____ 1. Take possession of all legal records including:

__ Original will and all amendments or codicils

Note: If decedent did not leave a will, the beneficiaries will be determined according to Florida intestate law. See Dying Without A Will In Florida.

__ Tangible Personal Property Memorandum or writing indicating instructions for distribution of tangible personal property (such as jewelry, furniture, cars)

____ 2. Take possession of all financial records such as:

__ Inventory of assets if available

__ Passwords to computer, internet media, or social media

__ Checkbooks

__ Credit cards

__ Statements from all banks, financial companies, or financial advisors

Click here for the complete checklist: Florida Personal Representative Checklist

This is a short list of initial action items for a person who accepts the duties as Personal Representative. It is not a complete list of tasks. The Personal Representative will only be able to determine all tasks after carefully reviewing the will, if there is one, with a Miami probate attorney. Attorneys at Rarick Trusts & Wills Law have helped many family members navigate the bureaucratic Florida Probate process as the Personal Representative. We are available to help you. Contact us at (305) 709-2858 or email to info@raricklaw.com.

Special Note:

The information on this blog is of a general nature and is not intended to answer any individual’s legal questions. Do not rely on information presented herein to address your individual legal concerns. If you have a legal question about your individual facts and circumstances, you should consult a Miami probate attorney that is experienced in Florida probate law. Your receipt of information from this website, blog, or Miami probate attorney does not create an attorney-client relationship and the legal privileges inherent therein.

The person in charge of making sure the property distributions in the Will are satisfied according to the instructions of the decedent is called a “Personal Representative” (referred to in other states as an “Executor”). The Personal Representative (or “PR”) has numerous fiduciary duties that run like a laser beam to the beneficiary. Here are some of the most important:

1. You have a right to secure a true copy of the Will. The original will must be deposited with the court within 10 days of notice of death by whomever has custody of it. F.S. 732.901

If you receive a Notice of Administration from the Personal Representative, it is strongly advisable to immediately request a copy of the Will from the PR.

Note: If the decedent did not have a will, your rights are determined – and protected – according to Florida intestate law. See a Miami probate attorney to help determine your rights and visit our previous article Dying Without a Will in Florida: Who Gets What? for more information.

2. You have a right to receive a Notice of Administration from the Personal Representative that will provide valuable information but will also establish a deadline as to when you can object to the Will. See #3 below. F.S. 733.212

3. If you believe the Will is not the true last will of the decedent, was executed when the decedent lacked capacity to understand what he or she was signing, or was secured as a result of undue influence, you have a right to contest the validity of the Will offered to probate.

Note: If you receive a Notice of Administration, your deadline for challenging the Will is 90 days after receiving said Notice. F.S. 733.212(3)

4. You have a right to see the inventory of the estate. The inventory must be filed within 60 days after the Personal Representative is appointed by the court and receives his or her Letters of Administration. F.S. 733.604??

5. You have the right to receive a detailed accounting filed by the Personal Representative pursuant to F.P.R. 5.345. If the PR has not filed an accounting, you have a right to compel the PR to do so. F.P. R. 5.150 Lastly, you can object to an inventory or accounting filed by the PR.

6. You have the right to Petition for the removal of the Personal Representative. F.S. 733.506.

7. You have the right to petition for an interim distribution. F.P.R. 5.380; F.S. 733.612(26)

8. You have the right to receive an inventory of safe deposit box F.P.R. 5.342

9. You have the right to petition for determination of homestead status of real property. F.P.R. 5.045. Such a petition is often advisable to shield the decedent’s primary residence from claims of creditors.

10. You have the right to petition for a decrease in the Personal Representative’s compensation. F.S. 733.617

This Report is only a summary of the key rights a beneficiary possesses under a Florida Will. It is not a complete list of rights. For more information, contact Phil Rarick, Miami probate attorney, at (305) 709-2858 or info@raricklaw.com.

Special Note

The information on this blog is of a general nature and is not intended to answer any individual’s legal questions. Do not rely on information presented herein to address your individual legal concerns. If you have a legal question about your individual facts and circumstances, you should consult an experienced Miami probate attorney. Your receipt of information from this website or blog does not create an attorney-client relationship and the legal privileges inherent therein.

Most divorce judgments call for one of the parties to obtain a life insurance policy for securing the payment of child support, alimony or some other financial obligation. Let’s assume the obligation is solely child support: a potential mistake is failure to secure payment of the policy premiums by use of an irrevocable Children’s Safe Harbor Trust structured as a spendthrift trust.

For securing the payment of child support, the settlement agreement should have specific language that may read as follows:

Larry shall establish an Irrevocable Children’s Safe Harbor Trust (“Trust”) to secure the payment of his child support and other financial obligations set forth herein. Within 10 days of execution of this Agreement, Larry shall transfer sufficient funds to the trustee of the Trust to purchase a term life insurance policy with a face value of $750,000 for a term of 10 years. The Trust shall be the owner and sole beneficiary of the insurance policy. The initial trustee of the Trust shall be [CPA, attorney, or independent third party]. The sole beneficiaries of the Trust shall be the children named herein. Said Trust shall be structured to (a) provide for the education, health, maintenance, support, and best interests of the children; (b) to protect the proceeds from creditor claims of Larry, the wife, or the children; and (c) comply with all of Larry’s financial obligations to the children as set forth in this Agreement. [Said Trust is attached hereto and fully incorporated herein.]

The Safe Harbor Children’s Trust could help insure that the policy does not lapse if Larry does not have sufficient funds to purchase the policy outright, but rather needs to pay on a monthly schedule. If a premium payment schedule is needed, it would be wise to have Larry prepay at least 3 months of premium in advance to the Trustee. The trustee would be required to notify the wife if funds for payment of the premium fall below a required minimum balance.

Such monies would be held by the Trustee to ver non-payment and give the wife time to compel the Husband to make payments. An alternative would be to purchase a life policy with the premiums guaranteed.

Note: Larry would want the trust structured to maximize his annual gift tax exclusion of $18000 per beneficiary in 2024. This is accomplished in the trust terms by use of what is known as “Crummey Powers”. Using such powers and assuming Larry has three children, he could annually transfer tax free $42,000 and not be required to file a Form 709 gift tax return.

How We Can Help

The primary focus of Rarick Trusts & Wills Law is trusts of all kinds and estate tax planning. As Miami trust attorneys, we have many years of experience in working with family law attorneys. We are available to consult with you and welcome any questions or comments. For more information, contact Phil Rarick at (305) 709-2858 or info@raricklaw.com. Special Note

The information on this blog is of a general nature and is not intended to answer any individual’s legal questions. Do not rely on information presented herein to address your individual legal concerns. If you have a legal question about your individual facts and circumstances, you should consult an experienced Miami trust attorney. Your receipt of information from this website or blog does not create an attorney-client relationship and the legal privileges inherent therein.

One of the most important decisions you can make for your estate plan is your batting order of successor trustees: who do you want to step up to the plate for you if you cannot? It is important to place in position those persons in whom you have complete trust. Your successor trustee is charged with managing your financial affairs. This person is a fiduciary, and therefore under the law has a high fiduciary duty to follow your trust instructions exactly, pay all taxes on time, keep a good accounting of all monies coming in and going out – these are just a few of the many tasks. For a good summary of successor Trustee duties see our report: 12 Point Summary of Florida Successor Trustee Duties.

Many persons prefer to name a family member as a successor trustee – such as an older child. However, this position can sometimes cause conflict and disharmony in the family – especially when the older child must make discretionary decisions about distributions of trust funds to the other children.

These conflicts can be avoided by naming a non-family member who can be an individual or corporate trustee. Corporate trustees (such as Coral Gables Trust, Northern Trust or SunTrust) are generally viable options for large estates of $5 million or more. For estates less than this, you may wish to consider an individual who could be your CPA, attorney, or other licensed professional.

For non-family successor trustees, we typically recommend a CPA or trust attorney. Both Jay Beskin and I are available to act as successor trustee – we have served in this capacity for multiple families. As Miami trust attorneys, we and our staff have many years of consulting and administering estates and trusts; we are confident we can provide efficient trust administration in a cost-effective way.

Do you know your batting order – the order of succession for your trustees? Will your order of succession work or cause disharmony in the family if you are disabled or die? If you would like to review your trustee succession with us, we can offer a free consultation. Simply call Christy at (305) 709-2858.

Special Note

The information on this blog is of a general nature and is not intended to answer any individual’s legal questions. Do not rely on information presented herein to address your individual legal concerns. If you have a legal question about your individual facts and circumstances, you should consult an experienced Miami trust attorney. Your receipt of information from this website or blog does not create an attorney-client relationship and the legal privileges inherent therein.

A living trust is simply detailed, legally binding instructions to care for you and your family. There are three key players in a trust. First, the Trustmaker or grantor; this is the person who makes the trust. Second, the Trustee, whose job is to follow the instructions of the trust exactly and to the spirit of the trust. The third role are the Beneficiaries. The Trustee’s fiduciary duties run like a laser beam to the beneficiaries: every penny of the Trust must be used in the best interests of the beneficiaries.

Initially, you can act in all three roles in your living trust: You can be the trustmaker, trustee and beneficiary. Your spouse, children, or other loved ones can also be beneficiaries.

Your living trust is revocable – you can change your trust instructions anytime you wish. There is only one person in the world who can change your instructions: you. In the event of your temporary or permanent mental incapacity, or upon death, the trust locks in and becomes irrevocable so that no one else can change it.

Note: To achieve the objectives noted here, your trust must be properly drafted by an experienced Miami trust attorney and funded by transferring your assets to the trust. Funding of the trust is essential to achieving the trust purpose. Your key assets must be titled in the name of the trust or flow into the trust because the trust is the beneficiary of your account. If you have a living trust, and you have not reviewed the trust funding within the past several years with your attorney, it is likely time to do so.

For more detailed information see our paper: Understanding Living Trusts For Florida Residents. Take-Away Points

1. Every person, whether you have $100,000 or $1 million, should likely have a living trust rather than a will. A will must usually go through the costly, bureaucratic court system known as probate. A trust, properly funded, can avoid probate.

2. A living trust is important to keep legal control in the family – and avoid court intervention in the form of guardianship or probate.

3. A living trust provides detailed instructions to help insure that your hard earned money goes to your children or other loved ones – and not to their spouses, or creditors. Just as important, your trust instructions can help insure that your children receive a first-rate college education to help them compete in our new global economy.

A. Who is a Minor Person in Florida? A “minor” is a person under 18 years of age whose disabilities of age have not been removed by marriage or otherwise. F.S. 744.102(13). During minority, the mother and father are the natural guardians of their own children, either natural or adopted. F.S. 744.301(1) B. Settlement of Claims for Minor Children The settlement of claims on behalf of minors is governed by F.S. 744.301, 744.3025 and 744.387. The statutes make a distinction between settlement of claims under or above a $15,000 threshold. (Note: Prior to April 29, 2002, the threshold was $5,000.) 1. Settlements Of $15,000 Or Less Court approval is not required. The natural guardian is authorized to settle such claims. 2. Settlements Of Over $15,000 Court approval is required for all settlements over $15,000. Therefore, a legal guardianship will be required. F.S. 744.387(2). 3. Appointment Of Guardian Ad Litem For Minor Appointment of a guardian ad litem to represent the minor’s interest is required if the gross settlement amount is $50,000 or more. If the amount is between $15-50,000, a guardian ad litem may need to be appointed. Note: For more information about Florida Guardianship see: Florida Guardianship Quick Reference C. Conclusion Failure to obtain court approval under F.S. 744.387(3)(a) of a pre-suit structured settlement exceeding $15,000 on behalf of Florida minor child could result in the settlement being disaffirmed by the minor on reaching majority or within a reasonable time thereafter. The attorneys at Rarick, Beskin & Garcia Vega provide guardianship planning and administration. For more information or a good faith estimate of the legal fees and costs, please contact Phillip B. Rarick, Miami Probate Attorney, at (305) 709-2858 or e-mail prarick@raricklaw.com. Special Note The information on this blog is of a general nature and is not intended to answer any individual’s legal questions. Do not rely on information presented herein to address your individual legal concerns. If you have a legal question about your individual facts and circumstances, you should consult an experienced Miami probate attorney. Your receipt of information from this website or blog does not create an attorney-client relationship and the legal privileges inherent therein.

The following documents are usually needed to open a testate Florida ancillary probate:

Court-authenticated copy of:

1. Decedent’s last will

2. Petition for Probate

3. Order admitting the will to probate

4. Letters of administration

Other documents:

5. Two Certified Death Certificates

If not set forth in the Petition for Probate:

6. Name and address of all beneficiaries

7. Inventory of Florida property

8. Copy of all Florida deeds

9. Copy of tax bills for all Florida real property

For any questions, contact Phil Rarick, Miami probate attorney, at (305) 709-2858 or prarick@raricklaw.com.

1. The different stages of probate;

2. The fiduciary powers of the Personal Representative; and

3. The duties of the Personal Representative.

Note: In Florida, every personal representative, unless the personal representative remains the sole interested person, must be represented by an attorney admitted to practice in Florida. Fla. Prob. R. 5.030 (a). This is a summary, not a complete statement of the PR’s powers and duties. Additional questions should be addressed to an experienced Miami probate attorney.

MEMORANDUM TO THE PERSONAL REPRESENTATIVE

To: ______________, Personal Representative From: ___________________ Esq., Attorney for Estate Re: Estate of ______________________ You have been appointed as personal representative of an estate and you should be aware of your duties and responsibilities. The functions described here are often referred to under the term “settling the estate.” The process of settling the estate is a legal process and as your attorney I will counsel and advise you throughout this procedure. A personal representative is classified in the law as a “fiduciary.” A fiduciary is a person who has been selected for a position of special faith, trust, and reliance. A “trustee” is another type of fiduciary and the duties and responsibilities which you leave in the settlement of this estate are quite similar to the duties and responsibilities that a trustee would have. For the period of administration of the estate you are entitled to possession and control of all of the assets of the estate. Your duty is first and foremost to protect and preserve the assets and also to see that the assets are invested in a prudent and cautious manner. You need to identify and marshal all assets of the estate. The persons to whom you owe these duties are, first, any creditors of the estate, and second, the beneficiaries of the estate. If your duties are not properly or competently performed, you may have to answer to any of these persons who have been harmed as a result. After you receive your letters of administration, we will publish a Notice to Creditors which gives all creditors of the estate a 90 day window to file claims against the estate. You need to make a diligent effort to identify all creditors. In order to make sure that you identify creditors it is important to file a change of address and make sure that all correspondence of the decedent comes to your mail address. The process of probate, or administration of the estate, or settlement, depending upon the term you prefer, begins with filing the will for probate, preparation and filing of a petition for probate, and after various procedures which are my responsibility, the judge will sign letters of administration, a copy of which you will receive. The letters of administration are evidence of your legal authority to act as personal representative. Once the administration procedure has begun, it will pass through several stages or plateaus. The first stage of the administration, after the letters of administration are issued, is that of giving notice to those persons who are involved or interested in the estate. Beneficiaries of the estate will receive the required notice by certified mail. Creditors are given legal notice by publishing a legal notice in the newspaper, but creditors whose names and addresses are known or reasonably ascertainable must be served with the notice personally or by mail. The next stage of administration is that involved in identifying, collecting, inventorying, valuing, securing and investing the assets of the estate. An important part of making certain that assets are secure is arranging for adequate insurance coverage for tangible personal property or improved real property. A list of all of the assets and their values must be filed with the court in the form of an inventory, and, if the estate is of a size sufficient to require the filing of an estate tax return, similar information must be provided for the State of Florida and for the Internal Revenue Service. As your attorney, I will work with you in preparing the inventory list, obtaining the asset values and preparing the necessary documents that need to be filed. During the early stages of administration (within approximately the first three months) any person having a claim against the estate as creditor is required to file the claim in the court. At the end of this initial period you will review any claims filed to determine that each appears to be valid and then promptly arrange for and make payment of all valid claims to avoid interest expense. Any claims not filed in this time period are not legal obligations of the estate, and in most instances cannot be legally paid. Another stage in the proceedings of the estate is the determination of various tax returns that may be required by law to be filed for the estate. There may be many required tax returns; however, the most common are final income tax returns for the decedent, which may not have been previously filed, income tax returns for the estate, if the estate has more than $600.00 in income during its tax year, and a Federal estate tax return (Form 706), which is required by law to be filed if the total taxable estate exceeds $5.25 million for the year of 2013. Note: Due to recent changes in the Federal estate tax law, it may be advisable to file a 706 estate tax return even if the estate does not exceed $5.25 million because of portability provisions in the new law. As your attorney I will review the estate assets and the estate income to determine which, if any, tax returns are required to be filed. Merely because a tax return is required by law to be filed does not necessarily mean that any tax is due. Throughout the estate proceeding, management of the assets is an important concern of the personal representative. Management of the assets includes investment of the assets, whether in bank accounts, government bonds, or other prudent forms of investment, to the extent that the estate has excess cash. A further and important consideration is liquidity management. The personal representative is required to sell assets or borrow money on behalf of the estate to meet the cash requirements as they arise, if cash available to the estate is not otherwise sufficient. Cash requirements for the estate include the payment of creditors, the payment of expenses of administration, and the payment of taxes. After expenses, including taxes, have been paid, the next level or plateau of the administration is the procedure involving distribution of the estate to the beneficiaries. As your attorney, I will review the terms of the will, or in case there was no will, I will advise you of the provisions of the law that apply in order to identify the persons who are properly beneficiaries of the estate and who are entitled to distribution. I will also calculate the distributive shares after deduction of any taxes, which are attributable to each share. Distribution of the assets of the estate then occurs to the persons entitled, sometimes by distributing the assets directly in satisfaction of a bequest, and other times by selling those assets and converting them to cash, and then distributing the cash. Another stage of the estate is closing out the probate. In this procedure the court enters its order discharging you as personal representative after your duties have been completed. In order to accomplish this estate closing, it is necessary to report to the court all of the legally significant activities which occurred in the estate and to furnish evidence that the creditors have been paid, that certain taxes have been paid, and that the remaining property has been distributed to the persons entitled to that property in proper shares. When this evidence has been presented in proper form, which is again my legal responsibility, the judge will sign an order, which discharges you as personal representative and terminates your obligations with regard to the probate. The final stage of this procedure is the filing of any final income tax return that the estate is obligated to file for the year in which final settlement occurs. It should be remembered when the estate is closed that the estate may have had taxable income for that year or otherwise be responsible for the payment of taxes, and sufficient funds must be retained by you in order to enable you to pay these taxes that may be due. As personal representative of the estate, in accepting that office and that trust, you have also agreed to be personally responsible financially for certain matters. Initially, of course, you have personal responsibility for proper administration, investment, and subsequent distribution of the assets of the estate. As I pointed out earlier, should you fail in this duty you may be sued by any person who has been injured by your failure. More important, however, is certain hidden liability, which you have assumed, and of which you should be aware, for the payment of various taxes that were owed by the decedent, or that may subsequently be owed by the estate. Upon the failure to pay these required taxes, the law permits the Internal Revenue Service, and in some situations, the State of Florida, to collect the taxes from your own assets. This would include the right to your personal bank account or place liens on real estate or other property which may belong to you personally. This, of course, occurs only if you failed to pay taxes from the estate that are required to be paid by you in your capacity as personal representative. It is because of this exposure to items that might otherwise be unknown to you that we should work closely together, and you should permit me to advise you at each level on your duties and responsibilities. Also, if you have any questions, you should not proceed without my advice. I am pleased that you have selected me as attorney to represent you in this estate, and I hope that you will be satisfied with the manner in which we conduct this business. Please sign and return this memo to indicate that you have received and read it. ________________________________

Client Name

DATE: _______________________, 20____ Special Note The information on this blog is of a general nature and is not intended to answer any individual’s legal questions. Do not rely on information presented herein to address your individual legal concerns. If you have a legal question about your individual facts and circumstances, you should consult an experienced Miami probate attorney. Your receipt of information from this website or blog does not create an attorney-client relationship and the legal privileges inherent therein.

____ Lock and secure all real estate and household contents: Keep insured

____ Take possession of all records

____ Do not allow entry to Safe Deposit Box without witnesses and prior discussion of arrangements with attorney

____ Engage attorney

____ Engage accountant

____ Locate original will and deliver to attorney

____ Complete Master Information List

____ Collect documents on Estate Document List

____ Cancel utilities, subscriptions

____ Advise Post office to forward mail

____ Contact homeowner’s insurance and keep insurance current

____ Inventory Safe Deposit Box

____ Search records for potential creditors

____ Advise secured creditors to keep current

____ Open Estate Bank Account

____ Set up Quicken Account

____ Order Appraisal

____ Determine if any Employee Benefits

____ Contact health care providers, such as doctors, hospitals, clinics and determine if they have accepted Medicare assignment for their services. If they have, then they have agreed to accept Medicare and any other insurance payments for their services. Therefore there should be no reason for them to file a claim in the estate for any unpaid portion of their statement. If we have a list of the Medicare providers, we will prepare objections to any claims they file against the estate.

____ Social Security: If the decedent was receiving Social Security, contact (a) the Social Security Administration to inform them of the decedent’s death; (b) the bank where the social security check is being deposited directly into to inform them of the decedent’s death. The Social Security checks are issued a the first of the month and they are in payment for the previous month. The decedent must have lived the entire month to be entitled to the Social Security check. For example, if the decedent died August 15, and the Social Security check was automatically deposited on September 3, the decedent is not entitled to the September 3 check or any checks thereafter. You must contact the bank and request that they return the check to Social Security. Often the bank does this automatically as a service to customers. If the check is not returned, the Social Security Administration will take steps to collect the check(s).

____ Make a claim for Social Security death benefit if (a) decedent has enough hours worked during his or her lifetime; and is (b) survived by a spouse or dependent child. For additional information contact Social Security at 800-772-1213.

____ Determine if Fraternal lodge union or other benefits

____ Determine if veteran benefits

Special Note The information on this blog is of a general nature and is not intended to answer any individual’s legal questions. Do not rely on information presented herein to address your individual legal concerns. If you have a legal question about your individual facts and circumstances, you should consult an attorney that is experienced in Florida probate law. Your receipt of information from this website, blog, or Miami probate attorney does not create an attorney-client relationship and the legal privileges inherent therein.

The benefits of a Special Needs Trust for an autistic minor child or adult are several:

– The Trust allows the person to continue to receive governmental assistance when they either inherit assets or when they receive assets through litigation or other unexpected sources

– Prevents the autistic person from being disqualified for governmental assistance

– When you can no longer care for your child, the trust appoints a person and successor persons whom you trust to act as the Trustee. The Trustee’s job is to make sure all of the money designated for your child goes to your child in the most prudent way possible, and that your instructions are followed exactly as written.

How A Special Needs Trust Works A special needs trust is a discretionary trust designed to preserve governmental benefits for the autistic person. Distributions from the special needs trust are designed to supplement the beneficiary’s public benefits, not supplant them. There are a two different types of special needs trusts: (1) a third party special needs trust, and (2) a self-settled special needs trust. Special needs trusts are commonly used to provide the beneficiary with specially equipped vehicles, dental work, computers, televisions, electronic devices, and other benefits not covered by SSI, Medicaid or other public benefits programs. Consult With An Experienced Estate Planning Attorney If you have a child with autism, you should consult with an experienced trust attorney to ensure that all of the technical requirements are met for this type of trust. To schedule an appointment with Miami trust attorney Phil Rarick, call (305) 709-2858 or email info@raricklaw.com. Special Note The information on this blog is of a general nature and is not intended to answer any individual’s legal questions. Do not rely on information presented herein to address your individual legal concerns. If you have a legal question about your individual facts and circumstances, you should consult an attorney that is experienced in Florida estate planning law. Your receipt of information from this website or blog does not create an attorney-client relationship and the legal privileges inherent therein.

• The value of the decedent’s estate (exclusive of exempt property) does not exceed $75,000; or
• The decedent has been dead for more than two years, regardless of the size of the estate.

Attorney’s fees for Summary Administration are typically charged at an hourly rate by a Miami probate attorney. In our firm, after reviewing the will (if there is one), inventory, and death certificate, we can give you a reasonable estimate of our fees and scope of legal services. Filing fees for Summary Administration: Filing fees are the costs paid the court to file the case. These fees are approximately $349 in Miami-Dade County. In other counties, the filing fee may be somewhat more or less. Formal Administration If Summary Administration is not available, then the other option is Formal Administration. As mentioned above, Florida law provides a presumptive statutory fee schedule based upon the value of probate assets. It is as follows:

• $100,000-$1 million: 3%
• Above $1 million-$3 million: 2.5%;
• Above $3 million-$5 million : 2%.

Additional fees may be charged at an hourly rate for extraordinary services, such as sale of real estate, preparation of a tax return, if the will is contested, etc. See F.S. 733.6171 Note: The Personal Representative is also entitled to fees for his/her services. The presumptive fee rates for the Personal Representative are similar to, but not the same as, the attorney rates. See F.S. 733.617. Filing fees for Formal Administration. These fees are $401 in Miami-Dade County. Again, in other counties, the filing fees may be slightly more or less. Take Away Points: 1. Find an experienced attorney who concentrates in probate law.

2. Make sure you ask both parts of the question:

– How much does the probate cost?

– What legal services do you expect to receive for these fees?

3. Get an engagement letter from the attorney that addresses both points: how the attorney fees will be charged and the legal services you can expect to receive. For consultation with a Miami probate attorney at Rarick & Beskin, P.A., call (305) 709-2858 or email info@raricklaw.com.

For more information, see our Florida Probate Quick Reference Guide.

2. If there are adult children, I want every dime to go to them – not their spouses.

3. If there are minor children, I want my children to continue to enjoy the lifestyle that they are accustomed to – and I want them to get a good college or university education.

4. I want to avoid court intervention in the event of incapacity: This is called Guardianship, which often starts at $5,000.

5. I want to avoid probate. Probate in Florida is expensive, bureaucratic, and can take 9 months to 2 years. See How Much Does Florida Probate Cost

6. I want to accomplish all of the above at the least possible cost.

It is exceptionally important to first identify your objectives and get the question right. If not, you may be able to find an attorney at the “lowest cost”, but in the long run, it may be the “highest cost” for you and your family. If you fail to identify your true objectives, you may only solve part of your needs. For example, a living trust, by itself, is a poor plan. You likely need a basic estate plan that may start with a Living Trust, but also includes a Florida Health Care Surrogate, Living Will, Durable Power of Attorney, and Pour-Over Will. A good estate plan usually includes all five legal instruments. Note: These instruments must be Florida specific and up to date with current Florida law. “Do It Yourself” programs you may see on TV rarely meet these tests – and usually result in more costs and problems in the long run for your family. Ask for a Scope of Legal Services The second mistake a person seeking legal service may make is failing to ask for a scope of legal services – in writing. Do not simply ask for the costs. Ask, what services does your legal fee include? Most attorneys who specialize in estate planning can give you a flat fee for your estate plan. But you also want a scope of legal services. A scope of work that we present to a married person may include the following:

• Revocable Living Trust: Joint trust for both spouses
• Pour-over Will for each spouse
• Durable Power of Attorney for each spouse
• Living Will (Declaration to Physician) for each spouse
• Health Care Surrogate for each spouse
• Tangible Personal Property Memorandum for each spouse
• Affidavit of Trust for each spouse
• Instruction letter on funding
• One-half hour of consultation regarding funding the trust. (“Funding” is the transfer of assets into the trust.)
• Estate Planning Portfolio Binder
• Report From Counsel: Our periodic newsletter via email of practical legal tips to keep you informed of important legal developments that may impact your family.

The above scope of legal services for a married couple (first marriage) with two minor children, requiring no tax planning, will cost $1,500 – $2,250. Ask The Attorney To Waive the Initial Consultation Free Our firm charges an initial consultation fee of $275 for estate planning. However, we will waive this fee if you are referred via our web site and come prepared with a completed intake form, or you are referred by a past client or professional adviser, such as your CPA or investment advisor. Many other estate planning attorneys have a similar policy. At the initial consultation, the attorney will help you identify your legal objectives. He or she will then give you the legal options for fulfilling those objectives. Lastly, the attorney will give you a scope of work with the total legal fees and costs. Take Away Points: 1. Avoid Mistake Number 1: Finding the least expensive attorney. First, identify your objectives, and then find an attorney who can meet those objectives in the least expensive way.

2. Avoid Mistake Number 2: Don’t just ask for the costs; ask for a Scope of Legal Services.

3. Request the attorney to waive the initial consultation fee. Take advantage of this free consultation; meet with the attorney and learn about your legal options and the total costs. For an initial consultation with a Miami Trust Attorney at Rarick, Beskin & Garcia Vega, P.A. call (305) 709-2858 or email info@raricklaw.com.

Florida’s elective share statute allows attorneys to draft standby Florida elective share trusts. (For a summary of Florida’s elective share see our post: Florida’s Sweeping Elective Share.) As of April 23, 2002, trusts that create property interests contingent upon an election being made are now qualified to fund the spouse’s elective share interests. The requirements for such a trust are set forth at F.S. §732.2025(2) and include: (1) surviving spouse must be entitled to use of the property for life or have all of the income payable as least annually; (2) the surviving spouse has the right to make the trust productive of income or convert it within a reasonable time; and no person other than the spouse has the power to distribute income or principal to anyone other than the spouse.

Rarick, Beskin & Garcia Vega has been trusted by numerous law firms and many families during the past 18 years for probate, estate planning, trust and asset protection cases. To schedule an appointment, call (305) 709-2858 or email info@raricklaw.com.

Special Note

The information on this blog is of a general nature and is not intended to answer any individual’s legal questions. Do not rely on information presented herein to address your individual legal concerns. If you have a legal question about your individual facts and circumstances, you should consult an attorney that is experienced in Florida estate planning law. Your receipt of information from this website or blog does not create an attorney-client relationship and the legal privileges inherent therein.

Note: Non-resident aliens and certain green card holders are still subject to a lifetime limit of only $60,000.

The Problem: These lifetime exemptions are scheduled to revert to $1,000,000 ($2,000,000 per couple) at the stroke of midnight on December 31, 2012. The tax rate on gifts over those amounts will also increase from the present cap of 35% to a whopping 55%. II. Action Items

If your estate is likely to be worth more than $1,000,000 ($2,000,000 if you’re married), now is the time to act: every dollar you give away this year (while the exemption is high) is one less dollar on which your estate will pay taxes. Of course, you need to keep an ample amount of assets to provide a healthy cushion to support your life style. Therefore, assuming that you’re not likely to run out of money during your own lifetime, you can make sure your children and grandchildren don’t receive less inheritance due to hefty estate and gift taxes going to the IRS.

Other Options. Be aware there are techniques whereby you can take advantage of the $5 million gift this year such that your spouse retains the benefit of the gifted property during his or her lifetime. By doing this, your spouse retains access to the funds for his or her lifetime. For more information on this option, contact Miami estate planning attorney Jay Beskin or Phil Rarick at (305) 709-2858. Stay tuned for a future blog on this option.

As we come closer to the end of the year, more people will be scrambling to lock in these exemptions by making gifts. Based on our present volume of work, I anticipate that anyone who hasn’t made an appointment for advanced gifting by the end of September will risk not having it done by the end of this year.

Rarick, Beskin & Garcia Vega has been trusted by over 400 law firms and many families during the past 18 years for estate planning, trusts, and probate cases. To schedule an appointment, call (305) 709-2858 or email info@raricklaw.com.

A. Summary Administration: The Fast Track

The fastest Florida probate procedure is Summary Administration, but it may only be used if (a) the value of the decedent’s entire estate subject to administration in this state, exclusive of exempt property, does not exceed $75,000; or (b) the decedent has been dead for more than two years, regardless of the size of the estate. F.S. 735.201(2). For more information about Summary Administration, see our Florida Probate Quick Reference Guide Time Frame for Florida Probate Summary Administration: Usually 1-4 months for simple, uncontested administrations.

B. Formal Administration. This administration must be used if the decedent’s estate does not qualify for summary administration: the decedent’s estate exceeds $75,000, or the decedent has been dead for less than two years, or the will requires formal administration. Strategically, if the decedent had all assets in a trust, formal administration may be advisable to clearly cut off creditor claims. For more information about Formal Administration, see our Florida Probate Quick Reference Guide.

Time Frame for Florida Formal Administration: A simple, uncontested formal administration can be a minimum of 4-5 months. More complex estates range from 6 months to 1 year. If a 706 is required, additional time may be required to close out all issues with the IRS.

Conclusion

Loss of a loved one is a difficult time for family and friends. We have helped guide many families through these times. Our attorneys will help you from the start to the end of the probate process. The first step is to schedule a meeting by calling (305) 709-2858 or email to info@raricklaw.com. We will provide you with a check list of tasks and documents, as well as a helpful “Mini-Master Information Form” to identify and organize all the assets. We will discuss attorney fees and how you can help to minimize such fees. We will endeavor to open and close the probate as expeditiously as possible.

Rarick, Beskin & Garcia Vega has been entrusted by over 400 law firms and many families during the past 18 years to probate small to complex estates and administer trusts. After the loss of a loved one, we endeavor to help you close the estate or trust in the most expeditious way.

Attorney’s fees and personal representative’s (“PR”) fees make up most of the costs for Florida Probate. The biggest cost are usually attorney fees. Florida probate attorney fees depend on whether the proceeding is Summary Administration – usually the quickest and least expensive – or Formal Administration. Many factors will enter into the fees, including whether the probate is contested, is subject to estate and other taxes, involves the sale of real estate, and requires advice regarding homestead. The second biggest cost are usually PR fees. However, since PR fees have a similar presumptive statutory schedule as attorney fees, they can equal or exceed attorney’s fees.

Note: Some Florida law firms only charge fees at the statutory fee schedule discussed below. This fee schedule can be unfair to the family if the probate is simple. Our Florida probate attorneys will discuss the options for attorney’s fees with you and we often can you an estimate of the fees and costs involved.

II. Summary Administration

Summary administration may be used for either a resident or non-resident decedent’s estate if (a) the value of the decedent’s entire estate subject to administration in this state, exclusive of exempt property, does not exceed $75,000 exclusive of exempt property; or (b) the decedent has been dead for more than two years, regardless of the size of the estate. F.S. 735.201(2) For more information about Summary Administration, see our Florida Probate Quick Reference Guide Attorney’s Fees for Summary Administration: Summary Administrations are usually charged at the attorney’s hourly rate. After reviewing the will (if there is one), inventory, and death certificate, we can give you an estimate of our fees.

III. Formal Administration

This administration must be used if the decedent’s estate does not qualify for summary administration: the decedent’s estate exceeds $75,000, or the decedent has been dead for less than two years, or the will requires formal administration. Strategically, if the decedent had all assets in a trust, formal administration may be advisable to clearly cut off creditor claims. For more information about Formal Administration, see our Florida Probate Quick Reference Guide.

Attorney’s Fees for Florida Probate Formal Administration: Florida law sets forth a presumptive statutory fee schedule for probate attorney fees that are approximately as follows:

– $100,000-$1 million: 3% – $1 million-$3 million: 2.5% – $3 million-$5 million: 2%

Additional fees may be charged at an hourly rate for extraordinary services, such as will contest, sale of real estate, preparation of a Federal estate tax return, etc. See F.S. 733.6171.

As noted above, the statutory fee schedule can be unfair to the family if the probate estate is large and relatively simple.

Personal Representative’s Fees for Formal Administration: The Personal Representative (“PR”), the person legally in charge of the estate, is also entitled to fees for his or her services. Since the fee rates for the PR are similar to the attorney rates (see above), they can equal or exceed the attorney fees. See F.S. 733.617.

IV. Conclusion

Our firm provides a complimentary probate/trust consultation. Call us at (305) 709-2858 or email attorney Phil Rarick at prarick@raricklaw.com and we will give you a Checklist Of Tasks and Checklist of Documentsyou will need if you are the PR. Upon review, we can give you a good faith estimate of the attorney fees and costs.

Rarick Trusts & Wills Law has been entrusted by over 400 law firms and many families during the past 18 years to probate small to complex estates and administer trusts. After the loss of a loved one, we endeavor to help you close the estate in the least stressful way.

Below is a summary of the basic obligations of a successor trustee of a trust.

Note: Trust administration requires strict compliance with the trust terms and often analysis of complex tax requirements. If you are a successor trustee, we can help. It is important that you follow the advice of an experienced Trust Administration Attorney to avoid or reduce estate taxes or income taxes and to protect yourself against personal liability.

1. Show Loyalty To All Trust Beneficiaries. Even if the successor trustee is himself or herself a beneficiary, as trustee he or she has the duty of loyalty to all the other beneficiaries, including the remaindermen.

2. Deal Impartially With Beneficiaries. The successor trustee cannot favor the income beneficiary over the interests of the remainder beneficiaries.

Read More: Successor Trustee’s Duties Disclaimer

The information on this blog is of a general nature and is not intended to answer any individual’s legal questions. Do not rely on information presented herein to address your individual legal concerns. If you have a legal question about your individual facts and circumstances, you should consult an attorney that is experienced in Florida estate planning law. Your receipt of information from this website or blog does not create an attorney-client relationship and the legal privileges inherent therein.

The most common purpose of the Irrevocable Life Insurance Trust (“ILIT”) is to help preserve the full value of the policy by protecting the insurance proceeds from the U.S. federal estate tax – currently at a 40% rate.

The ILIT is the owner and beneficiary of life insurance policies, usually on the lives of the donor and the donor’s spouse. Since the trust, and not the donor, owns the policy, the insurance proceeds will not be included in the donor’s federal gross estate. ILITs allow clients to replace the value of estate assets given to charitable entities. They are also beneficial for clients who wish to increase the value of assets left for their heirs at reduced tax costs. Life Insurance Trusts are generally structured so that the initial gift and subsequent gifts to the trust qualify for the annual gift tax deduction.

Read More: How does an Irrevocable Life Insurance Trust Work? Disclaimer

The information on this blog is of a general nature and is not intended to answer any individual’s legal questions. Do not rely on information presented herein to address your individual legal concerns. If you have a legal question about your individual facts and circumstances, you should consult an attorney that is experienced in Florida estate planning law. Your receipt of information from this website or blog does not create an attorney-client relationship and the legal privileges inherent therein.