Daily Archives: August 29, 2011

How Do I Transfer Real Estate of Deceased Relative in Lee County, Florida? ( Probate, Will, Trust, Decedent, Real Estate, Attorney, Lawyer, Cape Coral, Fort Myers, Bonita, Lee, Collier, Florida )

Was the relative a “resident” of Florida? If so, the real estate could be “homestead” property and transferred to the surviving spouse or heirs without probate. Depending upon the amount of assets in the name of the decedent at the date of death, probate may be required. If the decedent was domiciled in Lee County and all family members reside out of state; the individual with preference to act as Personal Representative may be appointed in Florida as a foreign PR if he or she qualifies. Florida law prevents individuals who have been convicted of a felony from acting as a Personal Representative. If the decedent was domiciled outside of Florida; a domiciliary probate proceeding may be brought in the residence state and an ancillary administration may be brought in Florida to transfer assets and pay creditors in Florida. Florida Statute 734.1025 provides a simple administration procedure for ancillary estates with less than $50,000.00 in assets in Florida.

Can I Avoid Probate By Executing A Will In Lee County, Florida? ( Probate, Will, Trust, Decedent, Real Estate, Attorney, Lawyer, Cape Coral, Fort Myers, Bonita, Lee, Collier, Florida )

There is a belief among the general public that having a properly executed Last Will and Testament will alleviate the necessity of probate for distribution of assets at death; this is unfortunately not true.  A will dictates who receives the testator’s assets at death and who will administer the estate; however having a will does not avoid the necessity of probate.  The amount of assets in the decedent’s name at death typically dictates whether or not probate of the estate is required. Another factor is whether the decedent’s only asset is his protected homestead; if so, this asset may be transferred to a surviving spouse or heirs outside of probate.

A common way to avoid probate is by titling assets in joint tenancy (which pass to the surviving owner) and creating accounts with a direct beneficiary (payable directly to beneficiary on death with production of a death certificate). Placing all assets in a trust in another method for avoiding probate. That said, a will remains an important and necessary part of future planning in addition to these documents that every person should have: (1) Living Will and (2) Durable Power of Attorney.

Probate & Trust Lawyers in Lee County, Florida vs. Trust Mills ( Probate, Will, Trust, Decedent, Real Estate, Attorney, Lawyer, Cape Coral, Fort Myers, Bonita, Lee, Collier, Florida )

The Unauthorized Practice of Law (UPL) is thought by some to be the occasional counsel or court appearance by a lawyer in a state where he or she is not licensed.  Unfortunately, the problem extends far beyond the mere taking from the mouth of lawyers in an adjacent state.  In Florida, UPL is frequently and frighteningly non-lawyers, non-law school graduates, and non-regulated lay persons drafting trust and estate documents under the guise of consulting.  I use the term “draft” loosely.  Typical “trust mills” as they are called, obtain, copy and regurgitate random trust provisions in a one-size-fits-all approach.  The common result is a template revocable living trust  sometimes valid, sometimes not, with absolutely no application for the specific needs of the signer.  Why would a person fall prey to such a trap, you ask?  The trust mills advertise free or low cost seminars to retirees who are on a fixed income.  The unbeknownst clients are led to believe that an attorney and other qualified professionals have been involved in the preparation in the documents.  In all fairness to the trust mill operators, there is an iota of truth in this misrepresentation.  Many of the trust provisions may have originated in the office of an attorney, however I do not believe that a compilation of unrelated legal drafting constitutes meaningful involvement by a professional.   The ramification of such a masterpiece is likely that the testator’s/settlor’s intentions will not be fulfilled by the documents.  Example:  a specific bequest does not state what occurs if the recipient predeceases the event triggering the gift.  The Florida Anti-Lapse statute causes the devise to pass to the recipients descendants as opposed to being added to the residue of the estate.

Another common result of trust mill documents is that they are not entirely effective due to lack of execution formalities.  A tip not known by many non- trust and estate lawyers is that trusts with testamentary provisions (creates a devise at death) must be executed with the same formalities as a will; i.e. two witnesses and a Notary Public.  Without these formalities, the testamentary distributions fails.

Use your instincts.  A client recently came to me requesting a review of her estate plan.  The results of my evaluation were unfortunate.  The documents lacked several essential provisions and further, exposed the client to losing homestead exemption on her personal residence.  Once I explained the problems that I found, she said “I just knew something was wrong.  I had a feeling.”

If you did not meet with an attorney prior to receiving your estate planning and/or advanced directive (POA, Living Will) documents; you should have an attorney review your documents for efficacy and accuracy.

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August 2011