Estate Category
Kevin Albaum

Preparing your Estate Plan During a Pandemic

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As a result of the surge of COVID-19 cases throughout Florida recently, many Floridians who had not considered getting a last will and testament prepared or not previously contemplated their mortality are now seeking to get their legal affairs organized quickly. While most people only have mild symptoms of COVID-19, it does not hurt to be prepared by having your estate plan in order. I’ve always felt strongly that everyone should have at least a basic estate plan, regardless of the COVID-19 outbreak, so a person’s wishes will be honored in the event of death, incapacity or a health crisis. Having an estate plan implemented is meant to ease concerns by knowing who will be in charge and what will happen if something unexpected happens to you or your loved ones. 

As of May 1, 2020, Traditional estate planning meetings between clients and their lawyers are still occurring during the pandemic in many lawyers’ offices. Additionally, many lawyers are now offering their estate planning meetings with clients to transpire via telephonic or video conferencing instead of the common in office meeting to practice social distancing recommendations. Traditional document executions in lawyers’ offices are now taking place not only in lawyers’ offices but also in client’s homes and some documents are now even being executed remotely utilizing electronic notarization (electronic notarization for many estate planning documents became legal in Florida on January 1, 2020). 

Additionally, some individuals have turned to online legal document building websites to help them draft estate planning documents through online legal technology companies that help customers create legal documents. Florida law requires very specific requirements to draft and execute documents such as wills, deeds, powers of attorneys, health care surrogate designations and trusts so it is important to make sure proper execution procedures are followed to ensure documents are valid at execution. 

Regardless of path chosen to get estate planning documents in place, I recommend at a bare minimum for individuals age eighteen (18) or older to have a basic estate plan. A basic estate plan would include documents such as: a durable power of attorney, health care surrogate designation, living will, HIPAA release and last will and testament. It is probably also prudent to spend some of this down time at home looking at the current titling and beneficiary designations of your assets and making sure your assets are titled as you wish. 

Whenever configuring an estate plan, it’s important to meet and discuss with a qualified estate planning lawyer where you plan what will happen to each of your assets upon your death to ensure that your estate planning goals are accomplished at the time of death. 

Kevin R. Albaum is a shareholder with the law firm of Clark, Campbell, Lancaster & Munson, P.A., in Lakeland. Questions can be submitted to thelaw@cclmlaw.com 

Estate Category
CCLM Law

Secure Act and Its Impact on Retirement Plans

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 On December 20, 2019, the President signed into law the “Setting Every Community Up for Retirement Enhancement” Act (the SECURE Act). The Secure Act modified many requirements for employer-provided retirement plans, individual retirement accounts (IRAs), and other tax-favored savings accounts. Most of the provisions go into effect this year (2020). Now is a good time to review and consider how these new rules may affect your tax and retirement-planning situation. 

Below is a brief overview of some of the key provisions of the Secure Act that may act on an individual’s retirement planning and tax and estate planning. 

Elimination of any age restriction for traditional IRA contributions. 

Prior to 2020, once an individual attained the age of 70 ½, he or she were not allowed to make traditional IRA contributions. Beginning in 2020, the Secure Act allows an individual of any age to make contributions to a traditional IRA, as long as the individual is working and has earned income. 

Required minimum distribution (RMD) age raised from 70½ to 72. 

Before 2020, retirement plan participants and IRA owners were generally required to begin taking RMDs, from their plan by April 1 of the year following the year they reached age 70½. For distributions required to be made after Dec. 31, 2019, for individuals who attain age 70½ after that date, the age at which individuals must begin taking distributions from their retirement plan or IRA is increased from 70½ to 72. 

Reduction of Stretch IRAs. 

For deaths of plan participants or IRA owners occurring before 2020, beneficiaries (both a spouse and non-spouse) were generally allowed to stretch out the tax-deferral advantages of the plan or IRA by taking distributions over the beneficiary’s life or life expectancy (in the IRA context, this is sometimes referred to as a “stretch IRA”). However, for deaths of plan participants or IRA owners beginning in 2020 (later for some participants in collectively bargained plans and governmental plans), distributions to most non-spouse beneficiaries are required to be distributed within ten (10) years following the plan participant’s or IRA owner’s death. This change eliminates the ability to “stretch” out the tax deferral over the beneficiary’s life. 

This 10-year rule requirement does not apply for distributions to (1) a surviving spouse of the account owner; (2) a minor child of the deceased account owner; (3) a disabled or chronically ill individual; and (4) any other individual who is not more than ten years younger than the account owner. These beneficiaries who qualify under this exception may generally still take their distributions over their life expectancy (as allowed under the rules in effect for deaths occurring before 2020). 

In addition to the foregoing changes, the Secure Act made the following changes and/or additions: (a) tax free or qualified distribution from a Section 529 savings plans to cover registered apprenticeships and to repay qualified student loans; (b) plan distributions (up to $5,000 per individual (or $10,000 for married couple)) used to pay expenses relating to birth or adoption for expenses related to the birth or adoption of a child are not subject to the 10% early withdrawal penalty for individuals under age 59 ½; (c) taxable non-tuition fellowship and stipend payments are now allowed to be treated as compensation for IRA contribution purposes, and therefore, the payments may be contributed by the individual to an IRA; (d) allow annuity and lifetime income option within employer plans; (e) incentives for business owners with 100 or fewer employees to establish a retirement plan (tax credits are increased from $500 to up to $5,000 for new plans); and (f) certain long-term part-time employees who work at least 500 hours in at least 3 consecutive years will be eligible to participate in their employers 401(k) plan (starts in 2021). 

With the start of a new year, it is always a good time to review and revisit your retirement plan and to consider tax and estate planning ideas. We recommend that you seek competent tax and legal counsel in tax estate planning and consult with your financial/investment advisor concerning your retirement plan. 

Estate Category
Kevin Albaum

How Assets Transfer When a Person Dies

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When a person dies their assets generally transfer to a new owner in one of four ways as follows: Joint Owner with Survivorship Rights; Payable-On-Death/Transfer-On-Death/Beneficiary Designation (“Beneficiary Designation”); via Probate; or via a transfer to a Trust. 

If an asset is owned with a joint owner who has survivorship rights to said asset, the surviving joint owner(s) automatically owns the asset free from the probate process upon the other joint owner’s death. Common assets that have joint owners with survivorship rights are: bank accounts; real property and investment accounts. 

If an asset has a Beneficiary Designation, the named person(s) to receive the asset will be able to claim said asset free from the probate process upon the owner’s death. Common assets that have Beneficiary Designations are: bank accounts; retirement accounts; life insurance; annuities; real property; corporate interests and investment accounts. 

Probate is a circuit court proceeding in which assets are transferred to new owners upon a person’s death. All assets that are not transferred by some other means (to avoid probate) are subjected to probate administration and thus subject to the terms of a person’s Will (if they have one). If you die without a Will and have assets that are subject to probate administration, any interested person can petition the court in order to distribute your assets according to state laws. I view a Last Will and Testament (more commonly referred to as a “Will”) as a necessary estate planning document for most people but I also see the Will as a safety net to catch assets that a person has failed to transfer via other methods such as joint ownership with survivorship rights, Beneficiary Designation, or by a transfer to a trust. There is a common misconception that the only estate planning document needed is a Will, however, a Will alone (without proper planning and understanding of how the Will operates) is not likely to avoid issues following a person’s death. 

If an asset has been properly transferred into a Trust during a person’s lifetime or by a Beneficiary Designation, the Trust’s terms shall govern the administration and distribution of said asset until the Trust has fulfilled its purposes and the asset will avoid the probate process. The depth of this article will only allow for discussion on the most common type of trust which is known as a revocable trust or a living trust (“Revocable Trust”), However, many types of trusts exist for many different purposes. 

A Revocable Trust is a legal document that is established during a person’s lifetime which usually directs that the trust’s assets and income are to be used for the person’s benefit during their lifetime and also designates beneficiaries to receive said assets after the person’s death. A Revocable Trust, like a Will, can be amended at any time by the creator of the trust who is known as the “Grantor” as long as he is living and maintains legal capacity. The person in charge of the trust with legal authority to manage the trust is known as the trustee (“Trustee”). The Trustee administers the trust for the benefit of the Revocable Trust’s named beneficiaries. Usually, the 

Trustee is the Grantor during his lifetime and then a successor trustee is named to take over the trustee role upon the Grantor’s death. 

After creating a Revocable Trust, the Grantor then transfers many of his assets to the Revocable Trust during his lifetime. The Grantor can add or withdraw assets from and to his Revocable Trust at any time during his lifetime while he maintains capacity. When the Grantor dies, a Revocable Trust becomes irrevocable and the then serving trustee and trust beneficiaries may not alter any of the trust’s provisions. A Revocable Trust will avoid probate upon the Grantor’s death for all assets that have been transferred to the trust. Probate is avoided because Revocable Trust assets are not titled in the name of Grantor at the time of death and therefore the property is not part of a probate process. It is very important to fund a Revocable Trust as failure to properly fund the trust will provide little or no benefit to the Grantor. 

Whenever configuring an estate plan, it is important to meet and discuss with a qualified estate planning and probate attorney where you map out and plan what will happen to each of your assets upon your death to ensure that your estate planning goals are accomplished at the time of death. 

Estate Category
Kevin Albaum

Electronic Wills in Florida are Coming, But are They a Good Idea?

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Effective, January 1, 2020, adult Florida residents will legally be allowed to execute an electronic last will and testament (a “Will”) to dispose of their property when they die.   A previous attempt to pass such laws failed in 2017 due to a veto by then governor, Rick Scott. However, a revised and improved version of the bill passed this summer as was signed into law by now governor, Rick DeSantis. The new law will allow the signing of Wills (and some other specific types of estate planning documents) to be completed 100% electronically online. To do so shall require the utilization of remote notarization and witnesses to appear via certain approved secure video chat services. Notaries will also be required to undergo new specific training in order to be able to conduct executions of electronic Wills.  Additionally, certain qualified and state-approved custodians will oversee safeguarding the completed electronic Wills for safekeeping until the creator of the Will dies, at which time the electronic Wills may be electronically filed with the appropriate probate court.

Florida is only the 4th state to implement laws related to the execution and storage requirements for electronic Wills.  One concern is whether other states will honor a properly executed Florida electronic Will or not.  If other states will not honor a Florida electronic Will, then a deceased person’s asset subject to probate administration in other states may not go to the intended beneficiaries. Traditional written Will executions usually occur in a lawyer’s office with proper procedures and safeguards put in place by a qualified lawyer in this area of law.  However, many of those procedures and safeguards will not be in place during electronic executions of Wills which should make electronic Wills a ripe target for attacks to their validity under theories such as lack of capacity and/or undue influence.  Additional safeguards were added to the 2019 version of the law to protect vulnerable adults in Florida; however, until the laws are created and have held up to challenges in probate contests, there is not going to be much clarity to attorneys who practice in this area of the law.  A final concern is that the ability to execute documents electronically may also open the door for “bad actors” to take advantage more easily of seniors by attempting to coerce them into signing electronic Wills.

The goal of the new law is to promote easier access to people that otherwise may not partake in legal services such as estate planning.  As an estate planning attorney, I agree that electronic estate planning is the future and want to provide easier access for all Florida residents to legal services.  However, I also believe that new laws on electronic Wills are going to initially bring with them more questions than answers in 2020 (and the following years). Therefore, I will not be implementing electronic Wills into my legal practice immediately but instead, will take a “wait and see” approach over the next few years.  Basically, I do not want my clients to be the guinea pigs for these new laws in case there are unexpected consequences that might negatively impact my clients’ estate planning goals.

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

Estate Category
Kevin Albaum

What is Probate?

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by Kevin R. Albaum

Probate is the legal process through which a deceased person’s debts are paid and assets are distributed to their heirs or designated beneficiaries via a court process. This article will outline the options that are available to the deceased person’s heirs or beneficiaries. If a person has a validly executed Last Will and Testament (more commonly called a “Will”), they are able to name the individuals, trusts, and/or charities they choose to receive their assets when they die. This is known as dying “Testate”. If a person does not have a valid Will in place when they die, then Florida law dictates who their heirs are that will receive the deceased person’s assets. There are four (4) different types of probate administration available under Florida law when a person dies residing in Florida (or owning real property in Florida). These different probate administrations are as follows: Formal Administration, Summary Administration, Disposition without Administration and Ancillary Administration.

Formal Administration: This method is the most common type of probate administration and often the preferred method by lawyers and courts. The process starts by the filing of a petition for administration. The court will admit the Will to probate (if there is one) and will also determine the person entitled or preferred to administer the estate. This person is known as a “Personal Representative”. The Personal Representative is issued “Letters of Administration” which is a document that gives them authority to act on behalf of the deceased person, so they can handle their final affairs such as paying creditors, filing tax returns, and transferring assets. An inventory is prepared by the Personal Representative, debts are paid (if properly presented to the court), and remaining assets are eventually distributed to heirs or beneficiaries. The formal probate is a lengthy process which will typically take anywhere from 6 months to several years. A probate attorney should be consulted to conduct a formal administration to ensure proper legal procedures are followed.

Summary Administration: This is an abbreviated court process to transfer a deceased person’s assets to the proper heirs or beneficiaries. It is available when the value of an estate is under $75,000 (not counting the homestead property and other exempt assets in the valuation). Summary administration also requires that there are no creditors owed any funds by the deceased person and/or that the individual has been dead for at least two (2) years. A petition for summary administration (and a few other pleadings) are prepared and filed with the Court. If the Court believes that the estate qualifies for summary administration, then an order is entered directing the distribution of the assets to the proper heirs or beneficiaries. The order is then presented by the heir or beneficiary to those individuals and/or companies in possession of the assets to transfer and/or re-tile them to the new owner. However, no personal presentative is appointed to administer a summary administration which can be a logistical problem sometimes if a company holding funds of the deceased person is requiring to see a document called “Letters of Administration” (which are only issued in a formal or ancillary administration).

Disposition without Administration: This type of probate isn’t technically a form of probate because there is no administration that even occurs. This method is also sometimes known as a small estate disposition and is rarely used. Most of the time no attorney is involved in the process and an individual goes to the county courthouse with all required documentation to complete. This method can be utilized if the only items a person dies owning are certain assets exempt from the claims of creditors and non-exempt personal property when the value of which does not exceed the sum of the funeral expenses and necessary medical and hospital expenses of the last 60 days of the last illness before death. If that is the scenario, an interested party may be able to submit a disposition form along with a death certificate, paid funeral bill, paid receipts of all medical and hospital expenses of the last 60 days prior to death, and the original will (if one exists) to accomplish a disposition without administration.

Ancillary Administration: This form of probate administration is available if the deceased person owned property in Florida but was not a Florida resident. The most common time this is needed if an individual owns real property in Florida but resides in another state or country. An ancillary administration often will run parallel and concurrently to a primary probate administration taking place in the deceased person’s state of residence. The procedure follows the formal administration track and it is important to work with an experienced probate lawyer.

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.

Estate Category
Kevin Albaum

Overview of Undue Influence Will Contests

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

The term “Undue Influence” is a legal cause of action that can be brought in court when it is believed that a deceased person’s Last Will and Testament (trust, deed, beneficiary designation, etc.) was the product of another person’s over-persuasion, duress, force, coercion… to such a degree that the person who signed the document did not use their own free will power in executing the document.  The person filing the lawsuit also needs to have been negatively impacted as a result of the alleged Undue Influence.

Undue Influence is often not discovered until after a person has died and (in the typical scenario) their Last Will and Testament is presented to the court for probate administration (the legal process of transferring assets from a person’s estate to the proper beneficiaries).   When a person submits a Last Will and Testament to probate, the person who files the probate case is only required to serve notice of the proceedings to the following people: decedent’s surviving spouse, beneficiaries, persons who may be entitled to exempt property, and trustees of any revocable trust (if the decedent had a trust).  Therefore, if a person who has exerted Undue Influence in the creation of the deceased person’s Last Will and Testament, those who were improperly disinherited may never even be notified by the wrongdoer.

If a person receives a “Notice of Administration” document in a probate proceeding, they only have three (3) months in which to bring a challenge before they are time barred.  If a person does not receive the requisite Notice of Administration document, the general rule is that you would have up to four (4) years from date of death to bring a challenge before it becomes time barred.   However, a recent case which is binding on the 2nd Circuit Courts of Florida found that the “Delayed Discovery Doctrine” applied to the specific facts of a certain case and therefore the person who was improperly disinherited was able to bring the legal cause of action after the four (4) years had expired. The Delayed Discovery Doctrine is merely an exception to the general four (4) year rule. It means that in specific circumstances, the statute of limitations will be extended by the court to give the plaintiff more time to file the lawsuit (up to a maximum of twelve (12) years) if the plaintiff didn’t know of (or reasonable should have known) of the circumstances that gave rise to their legal cause of action.

Determining whether Undue Influence has occurred is a question of fact for the judge or jury to decide. However, common factors the court will consider in making that determination are as follows:

  • The presence of the beneficiary at the execution of the testamentary document;
  • The safekeeping of the testamentary document by the beneficiary after execution;
  • The procuring of witnesses to witness the execution of the testamentary document by the beneficiary;
  • The beneficiary instructing the preparing of the testamentary document to the drafter;
  • The beneficiary knowing the contents of the testamentary document prior to the document’s execution;
  • The beneficiary recommending or selecting the attorney; and
  • The beneficiary’s presence on occasions when the now deceased person had expressed a desire to make the testamentary document.

This list is not all inclusive but are some of the key factors to be considered in determining whether or not a document was the product of Undue Influence.

If you believe you may have a valid claim of Undue Influence, you should speak with a knowledgeable probate attorney to ensure you understand your legal rights and when the statute of limitations on your possible cause of action will expire.

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.

Estate Category
Kevin Albaum

Is Your Minor Child Protected if Something Happens to You?

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By Kevin R. Albaum

My wife and I had our first child in November of last year (Nina). Our first order of business, like many others, was to purchase more life insurance coverage. We thought that by purchasing more life insurance, Nina would be provided for financially and thus protected if we were to unexpectedly die. However, in order to adequately provide for and protect a minor child in the event of both parents dying, purchasing life insurance should be just the first piece of a puzzle.

Who Gets Custody of the Minor Child?
If both parents are incapacitated and/or deceased, under Florida law, any family member or other person interested in the welfare of the minor child can petition the local probate court to become the guardian of the person and guardian of the property for the minor child. This often leads to legal fights (with a minor child caught in the middle) between aunts, uncles, godparents, and grandparents regarding who the court will choose to raise the child and manage their inheritance until the minor child turns eighteen (18).
If avoiding that potential family feud is desired, parents can proactively name a preneed guardian for their minor child in either their last will and testament or in a declaration of preneed guardian document that is filed with the local clerk of court during the parent’s lifetime. Not only can parents name the preneed guardian but they can also expressly bar someone from ever becoming the guardian of the minor child. By naming a preneed guardian, if a guardianship case is ever initiated, a rebuttable presumption arises that the person nominated by the parents as the preneed guardian is entitled to serve as the guardian for the minor child.

Don’t Accidentally Give The Minor Their Inheritance at Eighteen 
Under Florida law, a minor child cannot have more than $15,000 (in most situations) unless those funds are held in a guardianship of the property. When a guardianship of the property is in existence, there are legal expenses, court oversight of the spending, and the funds are often required to be held in restricted depositories. Additionally, a guardianship of the property terminates when a minor child turns eighteen (18). This means the minor child receives their entire inheritance on her 18th birthday.

Many parents plan to avoid the expense of a guardianship of the property and/or want to protect their children from accessing large amounts of money at age eighteen (18). This can be accomplished by crafting a last will or revocable trust to have an additional testamentary trust built into it that would hold the minor child’s funds in trust for a longer period of time. The parents also name a trustee (individual, professional, trust company) to manage the funds and make distributions to the minor child. If assets are structured to enter a trust for a minor child, they will not be subject to guardianship. The trust can be set up to hold the funds well beyond the time the minor child reaches the age of majority and the trustee will not have to distribute the funds to the minor child until the age the parents desire. I often draft testamentary trusts that terminate at age 25, 30, or 35 to avoid an 18-year-old receiving their entire inheritance too young.

If you desire to name a preneed guardian or set up your estate plan to protect your minor child, it is recommended to discuss your options with an estate planning attorney to determine the best way to structure the estate plan to meet your specific goals.

Estate Category
Kevin Albaum

What If A Deceased Person Owes You Money?

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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.

Estate Category
Kevin Albaum

Loved one is now deceased, what should we do?

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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.

Estate Category
Kevin Albaum

Second Marriages and Your Estate Plan

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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.