DO YOU NEED AN ATTORNEY WHEN SOMEONE DIES?

When a loved one passes away, undoubtedly you will wonder what you need to do. First, you'll make the necessary funeral or memorial arrangements. Then, we recommend taking care of yourself and your family. If your loved one passed after a prolonged illness, you may just need to take a break. If your loved one passed suddenly, you may need to wrap your thoughts around what has happened. After you've had some time to heal, it’s a good idea to speak with a qualified estate administration attorney. 

You will want to make sure you are proceeding in a legal manner with regard to your loved one’s estate plan and financial assets. Proceeding improperly could result in the creation of legal issues and liability at a time when you may already be overwhelmed.  For example, if your loved one owned a car in their individual name, it should not be driven. Family members from out of town may want to drive it while visiting, but what happens if they are in an accident? The estate could be sued and could be liable. What about IRAs and life insurance?  Do you know who the named beneficiaries are?  If they are individuals, each will need to make their own claim for benefits.  If the estate or a trust is a beneficiary, you'll want legal guidance to make sure everything is done in accordance with the will, trust and the law. Where is the original Last Will? Did you know Florida law requires the original will be deposited with the clerk of the court for safekeeping within ten (10) days of the date of death? Is there a Living Trust?  It is important to locate and safeguard original documents to ensure all instructions are carried out in as desired. Getting a handle on important documents and making a list of all assets is an important initial step in the estate administration process. 

 

Lots of questions will arise.  Having the opportunity to work with an estate attorney will give you peace of mind regarding the who, what and how of estate administration.  Who is going to be in a leadership role?  What are the assets and creditors of the estate?  How will the important steps of administration be carried out? These are just a few of the questions you'll want to have explore. 

       

Join us at our complimentary workshop What to Do When Someone Dies or any of our other educational workshops.  Please visit us at HoytBryan.com to register or join our mailing list.  Call us at (407) 977-8080 if you have questions. 

Real Property Problems - The Dilemma of the Unmarried Couple

I just received a call from a local realtor.  She was understandably concerned because a purchase and sale transaction she was working on had stalled.  The reason:  the property was owned by an unmarried couple and one of the partners had recently died.  The title search revealed the couple had taken title as John Doe, an unmarried person and Susie Que, an unmarried person.  There was no indication on the deed that title should have been as joint tenants with rights of survivorship.

In Florida, when a deed is silent as to the type of joint ownership, the presumption is the property is owned as tenants in common - each party owns a respective share, usually 50/50.  Tenants in common means that each person's individual share can be sold or devised without restriction.  So, when the first partner died, his interest in the property passes according to his will (and in the absence of a will, according to Florida's intestate succession rules). 

Individually owned property requires probate at the time of death.  As a result, the pending sale will be postponed until such time as a proper estate administration (probate in this case) can be commenced and completed.  This means the closing will have to be delayed until the will is submitted to probate, approved by the court and the property is properly transferred to the deceased's intended beneficiaries. 

This issue might have been avoided if the couple had received legal counsel at the time they took title to the property so they would have understood the difference between tenants in common and joint tenants with rights of survivorship (JTWROS).  Property owned as JTWROS passes by operation of law at the death of the first owner.  All that would be required is the filing of a death certificate in the county where the property is located. 

This is one of those cases where a little counselling on the front end (when the couple took title) may have resulted in a significant savings of time and money on the back end.  Be sure to consult with a legal professional any time you are taking title to property - real or personal - as your decision may impact your estate planning in the future. 

A Tale of Two Bad Outcomes – Why Unmarried Couples Need Estate Planning

Bob and Kate are an unmarried couple, neither of whom have children, and who live together in a home owned by Bob, individually.  Let’s say Bob dies.  The good news is he has a signed will.  The bad news is he prepared the will himself, without consulting an attorney.  The will leaves his home to Kate, who intends to continue living there just as she has for many years.  

The will also nominates Kate as personal representative (PR) to carry out Bob’s wishes and the instructions contained in his will.  Kate retains an attorney and opens a probate proceeding in the county where Bob lived. The home is Bob’s only individual asset and therefore the only asset of his estate, subject to the probate proceeding. Typically, homestead property is not a true probate asset and if left to a person’s heirs, is not subject to the claims of estate creditors. However, because Kate was not married to Bob, she is not Bob’s heir, and as a result the house will now be subject to the claims of creditors that are timely filed in Bob’s estate. 

As PR and beneficiary of Bob’s estate, Kate is not required to pay creditor claims from her personal resources. The only asset subject to the claims of a creditor is Bob’s home.  So, if there are valid creditor claims, the home may have to be sold to pay the creditors, leaving Kate without a home. The alternative, even though not required by law, would be for Kate to pay the claims from her personal funds, in order to keep the home. Likely, this result was not Bob’s intent but because Bob was a do-it-yourself guy, he did not consult with any attorney and was not aware of these potential issues.

As an alternative, let’s say Bob did not leave a will but died intestate (without a will).  Bob’s estate will pass pursuant to the intestacy provisions of Florida law.  Remember, although Bob and Kate lived together, they are not married and therefore, no legal relationship exists between them.  Bob has a brother who is still living. Bob’s brother is the legal beneficiary of Bob’s estate.  Bob’s brother opens a probate proceeding and files notice to take possession of the house. In this scenario, Kate is once again left without a home.    

These are only two possible scenarios.  There could be others.  The bottom line and take-away:  proper estate planning is the key to making sure your assets pass as you intend, to those you intend, as efficiently as possible, taking into consideration all the possible alternatives.     

Probate Court Rememdies For Elder Financial Abuse

Here's an article talking about an important and common topic - elder abuse.   It addresses the issues surrounding a guardianship or conservatorship as ways of preventing or addressing possible abuse.  Your best defense is a well-designed and updated durable financial power of attorney along with a well educated family.  



Probate Court Rememdies For Elder Financial Abuse

What is a Green Burial?

 

What is a Green Burial?  

A natural or “green” burial uses biodegradable containers (including caskets, shrouds or a favorite blanket) and avoids embalming fluids and vaults.  The idea is to ensure the burial site remains as natural as possible.  

A green burial is a cremation alternative and alternative to a “traditional” burial.  It is a more earth friendly option.  And, contrary to popular opinion, embalming, sealed caskets and concrete burial vaults are not required by law.  Instead, more traditional memorial parks may require them but a green cemetery or what is sometimes referred to as a memorial nature preserve, does not.  

Many people do not realize that an environmentally friendly burial in the ground is an option.  By using a natural burial, you are helping to preserve open spaces throughout the United States.  A green burial allows nature to take its natural course – reunited our bodies with the earth, for recycling into new life.  You can include native trees, shrubs and flowers to honor your loved one in a way that will promote habitat restoration.  

It is important to conserve our natural landscapes before they disappear as a result of encroaching development.  According to the U.S. Department of Agriculture’s Natural Resources Conservation Report, from 1997 to 2001, more than 2.2 million acres were lost to development.  A green burial can reduce environmental impact and help to preserve plants and wildlife, in their natural setting. 

In Florida, your choice for a green burial is Prairie Creek Conservation Cemetery, a not for profit organization, located in the heart of North Central Florida near Paynes Prairie State Preserve.  For more information, visit conservationburialinc.org. 

It's not the process, it's the people - The problem with probate

Probate has a bad name - something akin to a four letter word.  It's not probate that is generally the problem, however,  it's usually the people - the personal representative, the beneficiaries and yes, even the attorney.

Probate is a statutory process for the administration of a will.  Generally it is a three step process with a few twists and turns.  The first step is the identification, gathering and valuation of the estate assets.  The second step is the identification and notification of potential creditors. The third step is the distribution of assets to the beneficiaries.  Sounds simple, right?  Generally, not as simple as we would like because we are dealing with people - their personalities, their eccentricities, their fears and doubts, just to name a few of the potential issues we deal with on a daily basis. 

What is the law firm to do when the named and appointed personal representative simply will not carry out the responsibilities of their role?  They are our client so we can't file a Petition for Removal - another beneficiary would have to do that.  We can, if nothing else works, eventually file a Petition to Withdraw.  This can be tricky though because a personal representative must be represented by counsel and we can't simply leave them unrepresented.  They need to hire new counsel and if one attorney wants to fire them, why would another law office want that client? 

What if beneficiaries are slow to respond or won't respond at all?  That can slow the whole process down to a mud crawl.  Then everyone gets frustrated - the personal representative, the beneficiaries and the law firm. 

What if a beneficiary calls the law office continuously with a barrage of questions about their rights - now taking up the valuable time of the firm without compensation?  Generally our recommendation to the beneficiary is to seek independent representation so they can get their questions answered but that doesn't always happen. 

So part of the problem with probate it not the process itself, it's the people that create havoc, chaos and slow down the process so that the time necessary to complete the administration seems endless.  Choosing your personal representative is an important decision - think of all of the potential problems ahead of time.  Choosing your legal representative is also important - select a representative that is expert at the process and good at dealing with the people. 

Estate planning: Learning from the mistakes of celebrities and others - The Globe and Mail

This article has some excellent tips on avoiding mistakes in estate planning that can result in costly estate administration.  Do it yourself planning doesn't cost much on the front end but can have disastrous results after someone dies.  It's the classic example of being penny-wise and pound-foolish. 

Better to invest in a good estate planning attorney to ensure that your wishes will be carried out.  Look for an attorney who you feel comfortable talking to and who is willing to teach you the questions you didn't even know you needed to ask.  

Estate planning: Learning from the mistakes of celebrities and others - The Globe and Mail

The Law Offices of Hoyt & Bryan provides estate planning, estate administration and elder advice.  Contact us for more information.