What If A Deceased Person Owes You Money?

By Kevin R. Albaum, Esq.
Clark, Campbell, Lancaster & Munson, P.A.

When a person owes you money and dies, all is not necessary lost and the funds can still be recovered at times from the deceased person’s probate estate if proper procedure is timely followed by you as the creditor.  If a person dies and has assets that are subject to probate administration, any creditor of the deceased person may prepare a written “Statement of Claim” in an attempt to recover from the deceased person’s estate.  The Statement of Claim is then filed in the probate case of the deceased person. The Statement of Claim should include the following information: the basis of the claim; the name and address of the Claimant (and their attorney, if any); the amount of the claim; when the amount is due or will become due; if the debt is contingent or unliquidated; and if the debt is/is not secured.

When a Statement of Claim is timely filed in a probate case, the person administering the probate case (or their attorney) will have to resolve the claim by either: paying the claim, objecting to the claim, paying a portion of the claim, or not paying any of the claim if the estate has insufficient assets to pay the claim. If a Statement of Claim is not timely filed, the claim will be forever barred. Therefore, it is very important to understand the legal deadlines of when creditor claims are time barred and to act fast to file a Statement of Claim when a person who owes you money dies.

What If There Is No Probate, Can I Still File A Statement of Claim?

If no one comes forward to start a probate case, a Statement of Claim cannot be filed as there is no one in place to resolve the deceased person’s debts.  However, a document known as a “Caveat” can be filed with the probate court in the county where the deceased person resided at the time of their death.  The Caveat is a written notice to the court that acts as a bookmark so that the person who filed the Caveat, known as the “Caveator”, is notified if any probate case is filed in the deceased person’s name. When a creditor files a Caveat, the Clerk of Court is required to notify the creditor if a probate case is initiated and to provide the creditor with contact information for the person who initiated the probate proceedings.  Generally, after a creditor is notified of a probate case being opened, at that time, the Statement of Claim would then be prepared and filed in the probate case by the Caveator.

A Caveat is not just for creditors but also can be used by any interested person who is apprehensive that a probate case will be administered without their knowledge or any family member of the deceased person who is concerned they will not be notified by the rest of the family when a probate proceeding occurs.

If a deceased person owes you money, it is recommended to discuss your options with a probate attorney to determine whether it makes sense to file a Statement of Claim or Caveat and whether it is likely you would be able to recover from the deceased person’s estate.

Kevin Albaum is an attorney in the Elder Law Practice at Clark, Campbell, Lancaster & Munson, P.A. Questions can be submitted online to thelaw@cclmlaw.com.

Loved one is now deceased, what should we do?

By: Kevin R. Albaum, Esq.
Clark, Campbell, Lancaster & Munson, P.A.

As an estate planning and probate attorney, I often encounter the following question… What happens to my remains when I die? Usually, this question causes little or no concern to me as the majority of families agree on funeral, burial, and/or cremation plans for their loved one and will honor the wishes provided by the deceased person for the final resting place. However, occasionally there is a family dispute over what the deceased person intended for their final resting place or which person should get possession of the deceased person’s remains.

A person generally devises their property at death by using a Last Will and Testament or a Revocable Living Trust. Administering a probate or a trust disposes of the deceased person’s property. However, a deceased person’s bodily remains are not considered property under Florida law and bodily remains cannot be disposed by Last Will and Testament. Often times, a person will express their intent to their family and friends regarding their wishes for burial or cremation and sometimes that intent is written down or included in a Last Will and Testament. An intent shown in a Last Will and Testament (or other writing) for disposition of a person’s bodily remains generally should be honored. Any dispute over a deceased person’s bodily remains shall be resolved by a court of competent jurisdiction (often the county where the deceased person resided at time of death).

The person in charge of coordinating the funeral, burial, or cremation plans of a deceased person is the legally authorized person under Florida law. There is a priority ranking system to determine which person has the authority to plan funeral, burial, and cremation services and the order goes as follows:

1. Deceased person’s written direction
2. A person appointed in written military directive
3. The surviving spouse (except in limited circumstances such as domestic violence)
4. An adult child
5. Deceased person’s parent
6. An adult sibling
7. An adult grandchild
8. A grandparent
9. Other relative

Therefore, if a deceased person has provided written instructions regarding funeral, burial, or cremation, those wishes should be honored by the family. If no instructions were left behind, you would follow the priority rankings above to see who the legally authorized person should be to make decisions for the deceased person’s bodily remains. If the person with highest priority chooses not to help coordinate the arrangements, then the next person listed in the priority rankings will often make those decisions. The funeral establishment is required to rely upon the authorization of any one legally authorized person of that class if the person represents that she or he is not aware of any objection to the disposition of the deceased person’s bodily remains by others in the same class of the person making the representation or of any person in a higher priority class.

Additionally, the legally authorized person is not required to use their own resources to personally pay for the deceased person’s funeral, burial, or cremation and often times the deceased person will have prepaid for the arrangements during their lifetime. If there were no prepaid arrangements made by the deceased person, the family often decides to pay for the costs out of their own resources.

Kevin Albaum is an attorney in the Elder Law Practice at Clark, Campbell, Lancaster & Munson, P.A. Questions can be submitted online to thelaw@cclmlaw.com.

Second Marriages and Your Estate Plan

By: Kevin R. Albaum, Esq.
Clark, Campbell, Lancaster & Munson, P.A.

Blended families are becoming the norm these days and often times just before or after a second marriage occurs, the newlyweds want to craft their wills or trusts to provide for both their new spouse and their children from a previous relationship.

Q. What if I don’t have a Will?

A. If a person dies without a will in Florida it is known as dying Intestate. If a person dies Intestate and they have both a surviving spouse and children that are not children of their surviving spouse, Florida law provides that 50% of the assets subject to the Estate go to the children and the other 50% go to the surviving spouse.

Q. If I don’t like what would happen to my property if I die Intestate, can I change these percentages by creating a will?

A. Yes, any person over age 18 can make a will in Florida to determine which person(s) will administer their Estate and which person(s) will inherit their property when they die. However, this control over disposition of assets is somewhat limited as surviving spouses have many property rights and are entitled to some of their deceased spouse’s assets.  The surviving spouse can often claim those assets (even if the will says otherwise) if they take action timely and they haven’t previously waived those rights by executing a valid waiver or marital agreement waiving those property rights.  Below is a non-exhaustive list of rights and claims that a surviving spouse may be able to make on their deceased spouse’s Estate (even if the will says otherwise):

Homestead Rights:  A surviving spouse is entitled to claim either a life estate or ½ the value of the homestead real property.

Exempt Personal Property: Certain items such as household furnishings up to a maximum of $20,000 and two (2) motor vehicles may be claimed from the Estate by the surviving spouse as exempt personal property.

Family Allowance: An allowance of up to $18,000 may be claimed from the Estate by the surviving spouse to pay for their maintenance during the Probate administration.

Elective Share:  Upon death, the surviving spouse can decide to file for an Elective Share in the probate, which if timely filed would allow the surviving spouse to receive 30% of the deceased spouse’s Elective Estate.  The Elective Estate includes more than just the assets subject to probate.  The Elective Estate includes the following items:

  • The Assets in your Probate Estate and assets subject to probate anywhere else in the United States;
  • Assets in a Revocable Trust;
  • Pensions and Retirement Plans;
  • Joint Bank Accounts, Pay on Death Accounts, Totten Trusts;
  • Property Held in Joint Tenancy and Tenancy by the Entireties (limited to decedent’s interest in the property);
  • Certain irrevocable transfers;
  • Life Insurance policies payable to someone other than surviving spouse (includible value limited to decedent’s interest in net cash surrender value immediately prior to death);
  • Transfers made within one year of decedent’s death;
  • Irrevocable transfers to an Elective Share Trust; and
  • Property passing directly to surviving spouse.

Q. What if I have an old will from before I got re-married and never updated my will after my new marriage?

A. If a person that already has a will gets married, and fails to create a new will after the new marriage, the surviving spouse is entitled to make a claim for the same share as if the person dies intestate (50% of the assets in the Probate Estate). This is known as being a Pretermitted Spouse and it only encompasses assets that are subject to Probate. In contrast, the Elective Estate includes many assets outside of probate. A surviving spouse must make a choice between 1) choosing to be treated as a Pretermitted Spouse or 2) filing a claim for their Elective Share but they cannot claim both. Usually, calculations of both are made and the surviving spouse would decide to claim whichever is higher in value.  Homestead Rights, Exempt Personal Property, and Family Allowance are in addition to whichever option the surviving spouse chooses (between Pretermitted Spouse and Elective Share).

All of the above property rights must be timely claimed by the surviving spouse in a probate case upon the death of the spouse or else they may be considered time barred and thus lost.  It is important to ensure your current estate plan has been crafted to account for the above referenced property rights or the property rights have been waived to the extent desired if you want your will or trust to be fully honored after your death.

Kevin Albaum is an attorney in the Elder Law Practice at Clark, Campbell, Lancaster & Munson, P.A. Questions can be submitted online to thelaw@cclmlaw.com.

 

Pets and Estate Planning

By: Clark, Campbell, Lancaster & Munson, P.A.

When we think about estate planning, we generally focus on our family and friends, but what about our pets that may outlive us? We would like to think that our family and friends will want to care for our pets upon our death, but this is not guaranteed. This article is a general overview of steps that you can take to more effectively ensure that your pets will be cared for in conformance with your wishes during your lifetime and upon your death.

Q: My friend expressed that she will care for my pets if anything were to happen to me, should I still include my pets’ care in my estate planning?

A: Yes, in your Last Will and Testament (“Will”), you should give your pets to your friend. However, keep in mind that your friend may ultimately change her mind, or alternatively, your friend may predecease you. At the very least, you should consider naming alternates to care for your pets.

Q: How does a Will effectuate my wishes concerning my pets’ care?

A: A Will reflects your intent concerning your pets’ care, but the directives are not enforceable. While we may consider our pets a companion or a member of our family, by law, our pets are considered property. Pets can be conveyed through a Will like any other type of property that you may own. However, as property, a beneficiary can also disclaim or refuse to accept ownership of your pet. For example, in your Will, you give your pets to your friend, but shortly after your death, your friend discovers that she is severely allergic to your pets, and a result, she refuses to accept ownership of your pets.

Q: Is there anything else I should be concerned about if I were to rely solely on a Will regarding my pets’ care?

A:  Yes.  A Will does not consider the care of your pets during your lifetime and may not be immediately effective upon your death. For instance, you are determined to be incapacitated and you are subsequently admitted to a nursing home. The Will does not direct your pets’ care while you are incapacitated. Further, if your estate is subject to probate, a Will does not direct your pets’ care during the probate process. For these reasons, you may want to supplement your Will with a pet trust.

Q: What is a pet trust?

A: Florida, like most states, has adopted pet trust statutes. A pet trust is a legal arrangement concerning your pets’ care during your lifetime and upon your death. The trustee of a pet trust will hold funds for the benefit of your pets and will disburse such funds to a designated caregiver of your pets. The benefit of a pet trust, in contrast to a Will, is that a pet trust is enforceable, specific, effective during your lifetime and upon your death, and allows you to have control of your pets’ care with the oversight of a trustee after your death. In Florida, a pet trust will not terminate until your pets’ death, unless you direct otherwise.

Q: Is there anything else I should consider when formulating my pets’ care in my estate planning documents?

A: Yes. Due to the reasons discussed above, consider naming a rescue organization as a last resort to care for your pet. Additionally, you may want to consider naming not only the pets that you currently have, but also reference any pets you may acquire in the future. Finally, a pet trust can be as general or specific as you desire. For example, in a pet trust, you could direct the type of food your pets will be fed or which veterinarian will be used for your pets’ health issues.

If you wish to direct your pets’ care in your estate planning documents or wish to set up a pet trust, it is advisable to seek counsel from an estate planning attorney.

Attorney or Title Company to Handle a Closing

By:   Kevin R. Albaum and Anthony A. Velardi
Clark, Campbell, Lancaster & Munson, P.A.

Q: The Personal Representative (Florida’s term for an Executor) of my father’s estate is selling my father’s home to a family member. What is the process for this transaction, and should the probate attorney or a title company handle the closing?

A: As an initial matter, the probate attorney should review your father’s Last Will and Testament and determine whether the Personal Representative has the power to sell the home. The probate attorney should ensure that all individuals with an interest in the home have agreed to the transaction and sale price before proceeding with the closing. The probate attorney will need to confirm that there is no surviving spouse or minor child that may have retained homestead rights to your father’s home. A written agreement between estate beneficiaries may need to be drafted by the probate attorney in some circumstances in order to comply with Florida law.

For closing on the transaction, there are multiple benefits to using a probate attorney (if also a title agent) over a title company. The probate attorney is licensed by the Florida Bar and can therefore provide legal advice. Unless the title company has a licensed attorney on staff, the title agent cannot provide legal advice. Keeping the existing probate attorney also ensures that the law firm closing the transaction is aware of the history of the estate and any possible homestead issues and creditor claims against the estate. As the probate attorney is personally handling the estate, he would easily be able to obtain and record various legal documents when needed such as the Letters of Administration, Order Admitting Will to Probate and Order Appointing Personal Representative, and the Affidavit of No Florida Estate Tax Due, if filed.

Although title companies may charge less than attorneys to handle a closing, our experience is that the costs are often comparable.

 

The November 5th edition of “The Law” will discuss land trusts and whether to use them when purchasing property.

 Kevin Albaum is an estate planning and elder law attorney, and Anthony Velardi is a real estate attorney and title agent, both with the law firm Clark, Campbell, Lancaster & Munson, P.A., which offers probate, real estate title and closing, and other services. Questions can be submitted online to thelaw@clarkcampbell-law.com.

 

Anthony Velardi

Anthony Velardi

Anthony was born and raised in Ft. Lauderdale, Florida, and attended Pine Crest School from the 5th grade until he graduated in June 2001 with honors. During high school, Anthony played football and baseball and was a member of the powerlifting and track and field teams.

Anthony attended Stetson University College of Law in Gulfport, Florida and obtained his degree of Juris Doctor in May, 2009. While attending Stetson, Anthony served as Vice-President of the Christian Legal Society and led Bible studies for fellow Stetson students and organized various events throughout the year.

During his third year of law school, Anthony interned for immigration attorney O. Frank Valladares, and while working for Mr. Valladares, Anthony had the opportunity to go on a mission trip to the Dominican Republic with Project Child, a non-profit organization run by Mr. Valladares. Anthony also worked as a teaching assistant for Professor Jeffrey J. Minneti with the Academic Success Workshop for first year students.
Anthony Velardi

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Kevin Albaum

Kevin Albaum

Kevin Albaum was born and raised in Tarpon Springs, Florida. He grew up spending a lot of time on the water either boating, fishing, wakeboarding, or jetskiing. Kevin earned his bachelor’s degree at Florida State University where he competed for FSU’s mock trial team across the country. Immediately upon graduation, he enrolled at Stetson University’s College of Law in Gulfport, Florida due to their specialty program in elder law and his passion for that specific field of the law.

Kevin moved to Lakeland, Florida to join Clark, Campbell, Lancaster, and Munson where he practices in the areas of: elder law, guardianship, estate planning, trust administration, and Medicaid. Since moving to Lakeland, he has become involved with the Alzheimer’s Association Walk Committee, EMERGE Lakeland, and VISTE.
Kevin Albaum

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