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florida probate code manualAny person who is 18 years of age or older and who is of sound mind may make a will. If you do not have a will, the state determines who, if anyone, is entitled to receive your estate after your death. Find out more The Florida Probate Code Manual provides complete coverage of probate and estate administration: Intestacy Rights of heirs and beneficiaries Creditors' rights Will contests Fiduciary duties and responsibilities Appointment of a personal representative Appointment of a guardian The guardian as fiduciary. Includes a full set of FLSSI practice forms for probate and guardianship. The substantive rights of all persons that vested prior to January 1, 1976, shall be determined as provided in former chapters 731-737 and 744-746. The procedures for the enforcement of vested substantive rights shall be as provided in the Florida Probate Rules. History. — s. 4, ch. 74-106; ss. 2, 113, ch. 75-220; s. 5, ch. 2001-226. 731.102 Construction against implied repeal. — This code is intended as unified coverage of its subject matter. The person’s death is presumed to have occurred at the end of the period unless there is evidence establishing that death occurred earlier. Evidence showing that the absent person was exposed to a specific peril of death may be a sufficient basis for the court determining at any time after such exposure that he or she died less than 5 years after the date on which his or her absence commenced. Commercial paper, investment paper, and other instruments are located where the instrument is at the time of death. (2) When a nonresident decedent, whether or not a citizen of the United States, provides by will that the testamentary disposition of tangible or intangible personal property having a situs within this state shall be construed and regulated by the laws of this state, the validity and effect of the dispositions shall be determined by Florida law.http://manegedebuitenwijck.nl/uploads/fermax-intercom-manuals.xml
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The caveat of the interested person, other than a creditor, may be filed before or after the death of the person for whom the estate will be, or is being, administered. The caveat of a creditor may be filed only after the person’s death. (2) If the caveator is a nonresident and is not represented by an attorney admitted to practice in this state who has signed the caveat, the caveator must designate some person residing in the county in which the caveat is filed as the agent of the caveator, upon whom service may be made; however, if the caveator is represented by an attorney admitted to practice in this state who has signed the caveat, it is not necessary to designate a resident agent. (3) If a caveat has been filed by an interested person other than a creditor, the court may not admit a will of the decedent to probate or appoint a personal representative until formal notice of the petition for administration has been served on the caveator or the caveator’s designated agent and the caveator has had the opportunity to participate in proceedings on the petition, as provided by the Florida Probate Rules. The substantive rights of all persons that have vested prior to January 1, 2002, shall be determined as provided in former chapters 63, 215, 409, 660, and 731-737 as they existed prior to January 1, 2002. The term “beneficiary” does not apply to an heir at law or a devisee after that person’s interest in the estate has been satisfied. In the case of a devise to an existing trust or trustee, or to a trust or trustee described by will, the trustee is a beneficiary of the estate. Except as otherwise provided in this subsection, the beneficiary of the trust is not a beneficiary of the estate of which that trust or the trustee of that trust is a beneficiary. However, if each trustee is also a personal representative of the estate, each qualified beneficiary of the trust as defined in s. 736.0103 shall be regarded as a beneficiary of the estate.http://www.laznickova.cz/userfiles/fermax-cod_98600-manual.xml (3) “Child” includes a person entitled to take as a child under this code by intestate succession from the parent whose relationship is involved, and excludes any person who is only a stepchild, a foster child, a grandchild, or a more remote descendant. (4) “Claim” means a liability of the decedent, whether arising in contract, tort, or otherwise, and funeral expense. The term “descendant” is synonymous with the terms “lineal descendant” and “issue” but excludes collateral heirs. (10) “Devise,” when used as a noun, means a testamentary disposition of real or personal property and, when used as a verb, means to dispose of real or personal property by will or trust. The term includes “gift,” “give,” “bequeath,” “bequest,” and “legacy.” A devise is subject to charges for debts, expenses, and taxes as provided in this code, the will, or the trust. (11) “Devisee” means a person designated in a will or trust to receive a devise. Except as otherwise provided in this subsection, in the case of a devise to an existing trust or trustee, or to a trust or trustee of a trust described by will, the trust or trustee, rather than the beneficiaries of the trust, is the devisee. However, if each trustee is also a personal representative of the estate, each qualified beneficiary of the trust as defined in s. 736.0103 shall be regarded as a devisee. (12) “Distributee” means a person who has received estate property from a personal representative or other fiduciary other than as a creditor or purchaser. A testamentary trustee is a distributee only to the extent of distributed assets or increments to them remaining in the trustee’s hands. A beneficiary of a testamentary trust to whom the trustee has distributed property received from a personal representative is a distributee. A minor shall be treated as being incapacitated. (22) “Informal notice” or “notice” means a method of service for pleadings or papers as provided under rule 5.040(b) of the Florida Probate Rules.http://seasailing.us/node/3250 (23) “Interested person” means any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved. In any proceeding affecting the estate or the rights of a beneficiary in the estate, the personal representative of the estate shall be deemed to be an interested person. In any proceeding affecting the expenses of the administration and obligations of a decedent’s estate, or any claims described in s. 733.702(1), the trustee of a trust described in s. 733.707(3) is an interested person in the administration of the grantor’s estate. The term does not include a beneficiary who has received complete distribution. The meaning, as it relates to particular persons, may vary from time to time and must be determined according to the particular purpose of, and matter involved in, any proceedings. (24) “Letters” means authority granted by the court to the personal representative to act on behalf of the estate of the decedent and refers to what has been known as letters testamentary and letters of administration. For purposes of the code, real property owned in tenancy by the entireties or in joint tenancy with rights of survivorship is not protected homestead. (34) “Residence” means a person’s place of dwelling. (35) “Residuary devise” means a devise of the assets of the estate which remain after the provision for any devise which is to be satisfied by reference to a specific property or type of property, fund, sum, or statutory amount. Notice may be given both to the interested person and to another who can bind him or her. (b) Notice is given to unborn or unascertained persons who are not represented pursuant to paragraph (1)(a) or paragraph (1)(b) by giving notice to all known persons whose interests in the proceedings are the same as, or of a greater quality than, those of the unborn or unascertained persons. (4) If the court determines that representation of the interest would otherwise be inadequate, the court may, at any time, appoint a guardian ad litem to represent the interests of an incapacitated person, an unborn or unascertained person, a minor or any other person otherwise under a legal disability, or a person whose identity or address is unknown. If not precluded by conflict of interest, a guardian ad litem may be appointed to represent several persons or interests. (5) The holder of a power of appointment over property not held in trust may represent and bind persons whose interests, as permissible appointees, takers in default, or otherwise, are subject to the power. If an arbitration enforceable under this section is governed under chapter 682, the arbitration provision in the will or trust shall be treated as an agreement for the purposes of applying chapter 682. History. — s. 4, ch. 2007-74; s. 37, ch. 2013-232. Choose between 2, 3, 5, and 10-year agreements. All updates, new editions, and revisions are included in your monthly payment and delivered automatically, as soon as they become available. It covers topics such as: It covers topics such as. Please try again.Please try again.Please try again. Then you can start reading Kindle books on your smartphone, tablet, or computer - no Kindle device required. Register a free business account To calculate the overall star rating and percentage breakdown by star, we don’t use a simple average. Instead, our system considers things like how recent a review is and if the reviewer bought the item on Amazon. It also analyzes reviews to verify trustworthiness. Please try again.Please try again.Please try again. Then you can start reading Kindle books on your smartphone, tablet, or computer - no Kindle device required. Register a free business account To calculate the overall star rating and percentage breakdown by star, we don’t use a simple average. Instead, our system considers things like how recent a review is and if the reviewer bought the item on Amazon. It also analyzes reviews to verify trustworthiness. Seventh Edition May 9, 2012 I. INTRODUCTION For example, “probate estate” means the property of a decedent that is subject to administration, F.S. 731.201(14), generally property owned solely by the decedent that has not been given away before death. Assets that might not be included in the client’s gross estate for federal estate tax purposes, such as irrevocable trusts that the client created but in which the client retained no interest, or irrevocable trusts created by others in which the client has only an income interest, also are included. Not only does estate planning involve the transfer of assets at death, but also the accumulation and expenditure of assets during lifetime. The effect of inflation or deflation on these assets and the income from these assets must also be considered. Therefore, the “estate” consists of property in which the client and the client’s beneficiaries have an interest at the time the plan is implemented, minus property expended, plus property accumulated before death, adjusted for the effect of inflation or deflation. In addition to covering many of the laws relating to estate planning, this manual discusses solutions to problems that require knowledge from many disciplines. The chapters deal with the substantive law in the context of the procedural steps a lawyer must take to solve a particular problem. In addition, principles, rules, or implications are explored that a practitioner discovers after considerable experience in the area. In many instances, references to detailed discussions in other sources are cited in this text. Participants considered a number of crucial questions in the estate planning and probate areas and issued findings and policy recommendations that were published and circulated by the American Bar Association. See Death, Taxes and Family Property in Essays and American Assembly Report (West Pub. Co. 1977). Better public understanding would also be promoted by uniformity of state laws of succession. Mr. Dacey was a nonlawyer, a financial consultant, trustee, writer, and lecturer on various estate planning subjects. As of 1976 when the above Assembly Report was written, Mr. Dacey had sold approximately one million copies of his book. See Dacey v. Connecticut Bar Ass’n, 368 A.2d 125 (Conn. 1976). Estate planning was included in these seminars for two reasons. First, discussion of living trusts generated interest in other products.For a discussion of living trusts, see Chapters 8 and 9 of this manual. In particular, In addition, no statutory procedure was provided in the statute for objection to claims. Therefore, the 1995 Legislature repealed this publication of notice to creditors requirement effective October 1, 1995. Thereafter, F.S. 737.308 (now F.S. 736.05055) requires trustees of revocable living trusts that are includable in the grantor’s gross estate to file a “notice of trust” with the court of the county in which the grantor resided at the time of death and the court having jurisdiction of the grantor’s estate. This statute was retroactively modified by the 1997 Legislature. Unlike in the administration of a decedent’s estate, there is no requirement that a trustee hire an attorney to assist in the initial postdeath administration of a living trust. If the trustee retains an attorney to render legal services in connection with the initial administration of the trust, the attorney is entitled to reasonable compensation for the services. The trustee and the attorney may agree to the amount of compensation, but that agreement is not binding on the beneficiaries of the trust unless they consent to be bound. Court proceedings to determine compensation, if required, are a part of the trust administration process, and the costs, including fees for the trustee’s attorney, must be determined by the court and paid from the trust assets unless the fee request was unreasonable. The attorney’s fee provision for trusts applies to grantors dying on or after July 1, 1995. In addition, the elimination of the “notice to creditor” provision will require prudent fiduciaries to open a probate to resolve creditors’ claims. See Chapter 6 of Administration of Trusts in Florida (Fla. If an attorney is hired, the trustee may negotiate the scope of services and the fee.For an extensive discussion of the Florida Trust Code, see Chapter 18 of Administration of Trusts in Florida, supra. On August 1, 1991, The Florida Bar Standing Committee on the Unlicensed Practice of Law issued a proposed advisory opinion on the following question submitted by American Family Living Trusts: As a result of these seminars, nonlawyers sold other products such as deferred annuities, life insurance, long-term care policies, disability insurance, and investments. Thereafter, the Standing Committee concluded that all five steps involved in the creation of a living trust, including gathering necessary information, assembling the document, reviewing it with the client, executing it properly, and funding the trust agreement, constituted the practice of law under the authority of In re The Florida Bar, 215 So.2d 613 (Fla. 1968), 34 A.L.R.3d 1298 and State ex rel. The Florida Bar v. Sperry, 140 So.2d 587 (Fla. 1962), vacated on other grounds 373 U.S. 379. As a result of this opinion, the Unlicensed Practice of Law Committee has been successful in enjoining nonlawyers from creating living trusts and performing other estate planning functions. See The Florida Bar v. American Senior Citizens Alliance, Inc., 689 So.2d 255 (Fla. 1997). The area was redesignated as wills, trusts, and estates in 1993. See Subchapter 6-7 of the Rules Regulating The Florida Bar. Therefore, it appeared that attorneys would begin charging a reasonable fee for the estate planning services provided and look to that fee as the sole basis for compensation, with no anticipation of an extraordinary probate fee at the client’s death. The statute provided that, absent agreement among the attorney, the personal representative, and the persons bearing the impact of the fee, “reasonable compensation” for normal services performed by the attorney for the personal representative was to consist of the sum of two parts. The first part compensated the attorney’s responsibility and was an amount equal to 2 of the inventory value of the estate and the income earned thereon, plus 1 of the balance of the gross estate if the estate was required to file an estate tax return. The second part compensated the professional time expended and was an amount equal to the product of the number of hours reasonably expended times a reasonable hourly rate. F.S. 733.6171(3). Therefore, the legislature again amended the statute regarding fees for the personal representative’s attorney in 1995. The statute now provides for a sliding scale percentage fee, which is a “presumed reasonable fee” for ordinary services. This percentage is applied to the inventory value of probate assets and income earned by the estate during the administration. “Ordinary services” generally include those matters performed in an uncomplicated probate. Attorneys’ fees may be awarded by the court in compensation disputes unless the court finds the request for fees to be substantially unreasonable. F.S. 733.6175(2). Rule 5.400 requires that the final accounting disclose the amount and manner of determining compensation for attorneys, unless disclosure is waived. Therefore, even if services were rendered by an attorney after July 1, 1995, the prior statute applied if the representation commenced before July 1, 1995. Under the 1993 version of the attorney’s fee statute, the “2 of inventory value” portion of the “attorney’s responsibility” fee could be eliminated by avoiding probate. Under the 1995 version of the attorney’s fee statute, the “presumed reasonable” attorney’s fee for services rendered to a trustee is 75 of the presumed reasonable fee for services rendered to a personal representative. Likewise, computer programs are available to assist estate planning attorneys in projecting estate taxes and liquidity needs, all adjusted for the effects of inflation or deflation. These programs reduce the time and drudgery previously associated with preparing projections. See Chapter 15 of this manual for a discussion of these programs. Although it is clear that supervising the implementation of an estate plan is an integral part of the estate planning process, it may be possible to delegate some of the responsibility for re-registering assets to the client and thereby reduce the attorney’s fees. On the other hand, one could argue that if the client is not capable of assisting in funding the living trust agreement, the client will not be able to make certain that future assets are purchased in the name of the trust and that the trust records are properly maintained. If a client is unable to perform these duties with adequate instructions, should the client be acting as his or her own trustee? On the other hand, the client, with proper instructions from the attorney and the assistance of the client’s broker or banker, should be capable of re-registering a brokerage account or a bank account in the name of the client’s trust. Therefore, it may be better to allow the client to perform the ministerial, nonlegal aspects of information gathering and asset re-registration so that the lawyer can handle, and charge for, the legal aspects of the estate planning process. Otherwise, the entire process might be handled by the client or nonlawyers because of the potential size of the attorney’s fee. Nevertheless, experienced estate planners approach each client the same way and make independent determinations as to the relative complexity of each situation. Most estate planners have encountered clients who express the desire to have a simple will drafted (usually before the initial office conference and during the discussion of the estimated fees). After the estate planner has asked the proper questions, however, it often becomes clear that the situation is complex and a simple will would not meet the client’s objectives. Upon further reflection, the estate planner might find that the client desires to have the insurance paid to an only child, and a transfer of the ownership of the policy to that child will meet the client’s objectives without the complexity and cost of a trust. Some find it helpful to use an estate planning checklist and client information list to make certain that each client is asked the proper questions. Such a checklist can be found in Chapter 15 of this manual. This gives the client an opportunity to review records, gather documents, review life insurance and retirement plan designations, and do much of the groundwork in advance of the initial meeting. In this way, valuable professional time can be saved and more time can be expended on the other steps in the estate planning process. First, a list and values of all of the assets in the estate must be obtained. This includes not only the assets of the client, but also the assets of the client’s beneficiaries. In addition, assets that are not owned by the client but that are producing income for the client must be listed. See Chapter 15 of this manual, which covers the subject of estate planning checklists. The estate planner should not always rely on the client to determine the ownership of assets. Many times a client views assets as owned individually or half by the client and half by the client’s spouse when, in fact, the assets are owned in a tenancy by the entireties. In addition, many clients assume that the beneficiary of their life insurance policies or retirement plans is their current spouse when, in fact, a spouse from a first marriage or their estate may be named. When forced to rely on the representation of the client, a disclaimer such as “value and ownership of assets provided by client; estate planner did not independently verify” should be forwarded to the client to reduce the risk of liability if the goals of the estate plan are not achieved because of incorrect information. In addition to mortgages encumbering property and promissory notes, accrued income tax liability should be calculated. Especially important is the accrued income tax liability associated with retirement plan distributions. If the client is married, the planner should obtain all necessary information about the client’s spouse. If the client is divorced, the lawyer must know the terms of the divorce or separation agreement. In addition, if generation-skipping is a possibility, lawyers must collect information regarding the client’s children and grandchildren and the size of their respective estates. If so, planners must review these gift tax returns. In addition, attorneys should factor into the estate the effect of inflation based on the life expectancies of the client and beneficiaries. Although many of these calculations can be done manually, computer programs are available to do much of this forecasting. See Chapter 15 of this manual. This determination should be made as objectively as possible, without imposing the estate planner’s preferences on the client. A client might have other legitimate objectives in mind. For example, a client with a young spouse and children from a prior marriage who are near the same age as the spouse may be willing to incur estate taxes so that these children will be able to enjoy their inheritance before the death of the spouse. Likewise, a couple may be more interested in enjoying their assets than placing a portion of them in trust with the associated restrictions to avoid taxation on the survivor’s death. A related issue is the recent upsurge in asset protection planning, which is explored in Chapter 2 of this manual. For example, a client may want to pass his or her entire estate to the children with nothing to the surviving spouse. In this situation, the estate planner has a duty to advise the client of the homestead laws and the elective share, which may affect this objective. Alternatively, the client may want to give his or her entire estate to the spouse and, on the spouse’s death, have the estate pass to the children. Not only must the loss of the unified credit equivalent be mentioned if the estate is taxable, but also the possibility of a subsequent marriage by the spouse should be discussed. In light of such legal restrictions, a client may change previously stated objectives. Although most clients do not want to consider disability, the attorney should point out that a disability, either short-term or long-term, is a real possibility that must be considered when planning an estate. See Chapter 3 of this manual for a discussion of planning for disabilities. See also Asset Protection in Florida (Fla. Bar CLE 2008); Florida Guardianship Practice (Fla. Bar CLE 6th ed. 2008). Lifetime gifts to loved ones and charities are appropriate only in situations in which the donor has enough assets to satisfy other estate planning goals for the remainder of his or her lifetime. The tax ramifications of gifts are discussed in Chapter 5 of this manual. In addition to the tax ramifications, the lawyer should cover the practical benefits of lifetime gifts. In particular, lifetime gifts to young adults at the time that they are purchasing a home or paying for educational expenses of their children may be appreciated more than bequests at death to older children who have already built estates of their own. If the gifts are made during the donor’s lifetime, the donor will be alive to receive recognition and other attendant benefits by the charitable organization. On the other hand, many clients know little or nothing about living trusts or may have received inaccurate information. Therefore, planners must explain the advantages and the disadvantages of living trusts. The relative merits of living trusts are discussed in detail in Chapter 8 of this manual. Of course, other situations may also warrant discussing this device. In these situations, however, both probate avoidance and disability planning should be covered. For a general discussion of irrevocable living trusts in estate planning, see Chapter 2 of this manual. If the client uses a revocable living trust, a “pour-over” will is appropriate. If a client chooses to not select a living trust, the will becomes the sole dispository instrument on death. In connection with wills, attorneys should also discuss the following with clients: Burial instructions can be included in the will, although many attorneys counsel their clients to leave burial instructions with close family members in case the will is not available immediately after death. If the client desires to be cremated, cremation should be specifically mentioned to protect the personal representative or other person relying on that direction. F.S. 732.804. The client may prefer to make references to gifts of specific items to specific individuals, or a separate writing pursuant to F.S. 732.515 can be used so that items can be added or deleted at the client’s convenience without redrafting the will. Clients may want their tangible personal property distributed equally among a class of people. It is important to discuss the selection process for this equal distribution along with a method for resolving conflicts among the class members. For a discussion of powers of appointment, see Chapter 11 of this manual. On the other hand, if a living trust is not created, the will disposes of the residuary of the estate. The disposition of the residuary of the estate can be outright, or testamentary trusts can be created. For a discussion of estate tax consequences, see Chapter 5 of this manual. For treatment of the disposition of property to the surviving spouse, see Chapter 10. In discussing the disposition of the residuary of the estate, it may be appropriate to explore other specific areas. For a discussion of these various areas (such as generation-skipping, charitable planning, trusts for minors, and nonresident alien issues), see Chapter 2 of this manual. Fiduciaries are discussed in Chapter 12 of this manual. The powers the fiduciary will have to administer the estate or any testamentary trusts should be explored. For a discussion of joint ownership, see Chapter 7 of this manual. For a discussion of retirement benefits, see Chapter 2 of this manual. This topic is covered in Chapter 6 of this manual. Under the revised elective share law, the surviving spouse has a right to share in the “elective estate,” which consists of the decedent’s probate estate, property passing by survivorship, fractional interests in property, revocable or discretionary trusts, cash surrender value of life insurance, retirement plans, and transfers within a year of death. For a discussion of the elective share, see Chapter 4 of this manual and Chapter 7 of Practice under Florida Probate Code (Fla. Bar CLE 5th ed. 2007). Therefore, discussion of premarital and postmarital agreements may be appropriate to avoid application of the elective share law.