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Probate & Trust

Probate: mix in the upsetting event of suffering the loss of a loved one with having to handle the multitude of details of settling their final affairs. The last thing anyone wants to do is fight with family members, creditors, the IRS, business partners, or even the probate judge. For a novice, navigating the wilderness of a probate estate from beginning to end can be a daunting task, fraught with traps for the unwary. As seasoned professionals, we can be there to help see to it that the estate passes smoothly into the right hands, no matter the size of the estate. Also, we keep our eyes on the ball when it comes to tax avoidance and tax minimization in the process so that the maximum amount of wealth is passed to the heirs as possible under the law.

Probate is a court-supervised process by which property of a decedent is retitled in the name of the beneficiaries and creditors are paid. The person in charge of this process is the Personal Representative (many states, other than Florida, call the person the “Executor”). The person who is seeking to be appointed Personal Representative needs to hire an attorney to assist them with the court procedure if they are not both the sole beneficiary and sole named Personal Representative (Rule 5.030, Florida Probate Rules).

It seems that many laypersons think that simply having a will avoids probate. Unfortunately, that is not the case. A will simply tells the Probate Judge who should receive the assets and who will oversee distributing them as Personal Representative. Likewise, a person cannot avoid probate by failing to draft a will. The state of Florida has written a will for those who do not have one and need to go through probate. It is called “Intestate Succession,” giving you no control over whom you leave your assets to (you or your heirs may very much dislike the results).

The probate court has jurisdiction over both the Personal Representative and the assets of the decedent. The primary purposes of probate are to:

  1. Protect the heirs from fraud & embezzlement;
  2. Protect the government so all taxes are paid by the estate, but all opportunities to minimize taxes are pursued (there is much expertise for this that can be employed); and
  3. Protect creditors of the decedent so they are paid, but not overpaid.

Probate usually begins with the will being admitted to the probate court and the Personal Representative being granted “Letters of Administration.” Probate ends when all required taxes are paid, creditors are settled, and assets are accounted for and distributed as provided in the will. In certain instances, administering an estate through probate may be appropriate, even desirable over a trust administration, given the orderly nature of probate. Why? The probate process is overseen by a judge who ensures that the will maker’s wishes are carried out. Probate also can be very efficient and effective when the estate is well-organized before death, minor children are involved,or sensitive issues (like family members with special needs, or even substance abuse issues affecting one or more heirs) are at stake.

As with any legal proceeding, there are technical aspects to probate administration that an experienced Probate Attorney would be familiar with: beneficiaries and creditors need to be notified and legal notices published. Personal Representatives need to be guided in how and when to distribute assets and how to take creditors’ rights into account. A Petition to Appoint a Personal Representative may need to be filed and Letters of Administration obtained. Homestead property, which follows its own set of unique and complex rules in Florida, must be dealt with separately from other assets. There are time factors involved in filing and objecting to claims against the estate. There may be a lawsuit pending over the decedent’s death or there may have been pending suits that are now continuing. Real estate may need to be sold to ensure correct distribution of assets according to the estate plan or merely to pay debts. Estate and income taxes must be considered if the estate exceeds certain thresholds. Rest assured that all legal tax minimization or avoidance techniques will be pursued. We have helped many Personal Representatives and Trustees avoid hundreds of thousands of dollars of taxes in the last few years. Other assets may need to be transferred from the decedent to his or her heirs.

Should it not go as smoothly as described above, our experience includes handling issues arising from will contests, breach of trust, elective share disputes, guardianship and guardianship disputes, fiduciary conflicts of interest, formation, modification and termination of trusts, prudent investor rules, accounting controversies, fee disputes, agency under powers of attorney and health care surrogate designations, and other disputed claims. Our clients include businesses, families, individuals and charities.

No one probate estate is like another and our experienced attorneys and staff can guide the Personal Representative through the various steps and duties required for an efficient and effective probate. We have been through that wilderness before and are familiar with the terrain.

Trust Administration: mix in the upsetting event of suffering the loss of a loved one with having to handle the multitude of details of settling their final affairs. The last thing anyone wants to do is fight with family members, creditors, the IRS, business partners, or even the judge. For a novice, navigating the wilderness of a trust or probate estate from beginning to end can be a daunting task, fraught with traps for the unwary. As seasoned professionals, we can be there to help see to it that the estate passes smoothly into the right hands, no matter the size of the estate. Also, we keep our eyes on the ball when it comes to tax avoidance and tax minimization in the process so that the maximum amount of wealth is passed to the heirs as is possible under the law.

Trust Administration involves overseeing the assets held within a trust. A trust is a form of legal ownership in which an ownership interest in real or personal property is split between the legal owner (the Trustee) and the equitable owner (the beneficiary). Trusts are commonly created as an estate planning tool, and the Trust Administrator then oversees the distribution of assets within the trust according to the wishes of its creator. There are many different types of trusts, depending on the goals of the person or married couple creating a trust.

There are several aspects to owning property. Mainly, property ownership involves the right of possession, the right of use, the right to transfer or sell property and the right to convey the property to heirs upon death via a will. When a trust is created, the ownership of the property is put into the trust, which is a legal entity. The beneficiary of the trust is then vested with limited rights according to the terms of the trust; the beneficiary may have the right to use items within the trust but not to sell them or transfer them, or may have limited usage rights and restrictions on what he may do with the assets in the trust.

When a trust is created, in addition to naming the beneficiary or the person who is entitled to use the trust assets, a Trustee must also be named. That Trustee is responsible for Trust Administration. This means he is responsible for protecting the assets in the trust and ensuring they are used according to the wishes of the individual who established the trust. Further, Successor Trustees (replacing the prior trustee who can no longer serve, for whatever reason) and, sometimes, Trust Protectors (someone who can protect the trust when unforeseen problems occur in the future) should be named.

This sensitive, important planning can be accomplished through various methods: Wills, Revocable Living Trusts, Irrevocable Life Insurance Trusts, Children’s Trusts, Special Needs Trusts, Generation-Skipping Trusts, Family Limited Partnerships, Charitable Remainder Trusts, Charitable Lead Trusts, and other types of charitable trusts. Further, other estate planning vehicles and techniques including non-probate assets (i.e., insurance, IRAs, pension plans and jointly held property) can be utilized. The complexities associated with Trust Administration or probate can be enormous, but with our trust and estate planning experience, we can effectively and efficiently handle any probate or Trust Administration that may arise.

The duties involved in Trust Administration vary, depending on the nature of the trust created. It is common, for example, for a person to create a trust in which money is left to a child and then distributed to that child to pay educational expenses or when the child reaches a certain age. In such a situation, the trust administration duties involve ensuring that the assets are protected until the child reaches maturity and ensuring the money in the trust is used only for qualified expenses.

One type of common trust, frequently used in Florida to avoid probate, is the Revocable Living Trust. Even after the trust creator(s) dies, there are specific steps to be followed that are required by the State of Florida. Many of the duties required under probate are still required in a Living Trust situation, just without court supervision. Documents need to be filed in the public records; beneficiaries need to be contacted; assets gathered, valued and managed; creditors, final expenses and taxes paid; property managed until it is paid out to beneficiaries pursuant to the trust terms; and accountings to beneficiaries.

Successor Trustees often lack the time, resources or knowledge to personally administer the trust, and therefore may call upon legal, accounting and investment professionals for assistance. Often, a corporate fiduciary (e.g., trust company or lawyer) is an excellent alternative to relying solely on busy family members or friends to serve as trustee. We help your Successor Trustee(s) deal with the complexities of administering your trust.  For more than two decades we have also served as a trust fiduciary (Successor Trustee).

While representing individuals, businesses, charities, or families, our trust and estate planning attorneys carefully plan and administer in a manner that is advantageous for tax purposes. Rest assured that all legal tax minimization or avoidance techniques will be pursued. We have helped many Personal Representatives and Trustees avoid hundreds of thousands of dollars of taxes in the last few years.

Many Successor Trustees found the process to be much shorter and less stressful when someone experienced in this field assists with the settlement process. The Estate Planning & Elder Law Center of Brevard has years of experience working with Successor Trustees to streamline this process. We have personally assisted over 1500 Trustees in the Trust Administration process and have served as Trustee and Personal Representative in dozens of Trust and Probate Administrations. We thoroughly understand the process from start to finish and are willing to help, no matter the size of the estate.

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