The death of a loved one is a difficult time both emotionally and practically to deal with grief at the loss and the complexity of dealing with settling the estate.  Ultimately, if there is no designation of beneficiaries involved, then one must consider a Probate, which is both the legal transfer of ownership of property and assets as well as their distribution. This brief outline will assist in the organization of the steps one needs to do.  It must be noted that every estate is different and there may be additional issues that are not addressed in this outline.

Before contacting the necessary parties to administer the estate, you will need to gather the following important information:

1. Order certified copies (sometimes called originals) of the death certificate.
2. Full name of the deceased party.
3. Social Security Number of the deceased party.
4. Locate any pre-paid funeral arrangements.
5. Locate all statements and check books for any accounts jointly owned by the deceased and a third person.
6. Locate any burial instructions or writings related to the deceased’s funeral and memorial service preferences.
7. Biographical information of the deceased part for drafting the obituary.
8. Locate the deceased’s Estate Planning documents, such as the Last Will and Testament and/or Trust.

You should promptly contact Social Security of the death to avoid having to refund any improper direct deposits.  If you are the surviving spouse contact the local office of Social Security to determine if you ae entitled to additional benefits because of the death. Next, contact the Funeral Home and persons conducting the memorial service to plan arrangements.  Also, contact relatives and close friends to inform them of the death.  Call the deceased’s Attorney, if any, or contact one on your own, for assistance regarding estate matters. Further, contact any Life Insurance Companies.  Determine the beneficiary (some insurance companies will not give any information to anyone unless they are the beneficiary or they have been appointed as Personal Representative by the Probate Court), request the forms necessary to apply to receive the death benefits.  If there is no living beneficiary or the beneficiary listed is the deceased’s estate, distribution of the death benefit will likely require a probate proceeding.  Furthermore, contact the deceased’s Employer or former employer for possible group insurance, pension, or other benefits.  Finally, if applicable, contact the Veterans Administration or Civil Service Office of Personnel Management if decedent was a veteran or an active or retired employee of the Civil Service.  If the deceased was retired military, also contact the Defense Finance and Accounting Service Casualty Assistance Line to report the death and check for survivor’s annuity.  The surviving spouse will need to provide a copy of the marriage certificate.

Organizing estate assets and liabilities is usually undertaken by a Personal Representative (in some states known as an Executor) of the deceased’s estate or the successor trustee of the deceased’s trust, although a substantial portion of this information may be obtained prior to said appointment by obtaining the contents of a safe deposit box.  If the box is titled in joint names, the survivor has an immediate right of access. If only the deceased owned the safe deposit box in their name alone, an interested party may have to petition the Probate Court to gain access and get a Will, any Life insurance policies as well as undertaking a written Inventory of the contents therein after examination with a bank officer. You should also obtain or locate statements and records of bank accounts, of brokerage accounts, deeds, property tax bills and mortgages and the most recent loan statement or coupon book, Any stock or bond certificates, Insurance Policies, automobile title certificates or the vehicle registration, a list of personal property and any insurance policies on valuable items such as jewelry or art, Income Tax Returns for the past few years prior to death, and  any Gift Tax Returns, if applicable, The most recent credit card statement for each credit card, Any promissory notes or other evidence of loans or debts, medical bills, health insurance, funeral, burial or cremation bill and evidence of pre-payment, if any.

Make a list of all the deceased’s assets and determine their date of death value. You should also determine the ownership interest of each of the assets:  Individual, joint tenancy with right of survivorship or tenancy by the entireties if owned with a spouse, assets owned by the deceased’s trust, and assets with designated beneficiaries (life insurance policies, accounts with transfer on death, pay on death, in trust for, etc.).

You can then retain the services of a probate attorney and file a petition for probate administration of some type or level for any property owned solely by the deceased in their individual name and without any documented alternative method of transferring title (such as a beneficiary designation).  The type of petition you file will depend on the circumstances of the estate including the value of the assets in the probate estate, whether the Last Will & Testament directs Formal Administration, or a Personal Representative may be necessary, and whether there are outstanding debts of the deceased at the time of their death.

If the deceased has a trust, the Successor Trustee as named in the trust, must be appointed, and obtain authority to manage and administer the assets contained in or titled to the trust.  The Successor Trustee should seek the advice of legal counsel as to how to proceed pursuant to the terms of the subject trust as well as state law.

The Personal Representative or Successor Trustee must be proactive to preserve the value of the assets of the probate or trust estate, including, but not limited to  taking possession of personal property, stock and bond certificates and real property for safekeeping, managing the investment of securities, accounts and money to preserve their value,  maintaining or obtaining insurance on the estate’s properties, paying mortgage payments, property taxes and assessments as they come due, canceling the deceased’s credit cards and lines of credit, filing claims for insurance of which the probate estate or trust is a beneficiary, obtaining a federal tax identification number for the probate estate or trust, and/or opening a checking account for the estate (probate or trust).

The Personal Representative or Trustee is responsible for determining what debts the deceased had at the time of their death, verifying the validity of those debts and paying the debts.  This process can create liability for the administrator and should be done only with advice from counsel.

After the debts are paid, the Personal Representative or Trustee must then determine the identities of the beneficiaries and distribute the applicable share to each.  Real estate and securities may have to be liquidated to develop a proper or fair distribution.

For property owned jointly with the deceased with a right of survivorship, usually only evidence of death of the deceased and proof of identity of the surviving joint tenant are required to title the property in the surviving joint tenant’s name.  For real estate, a certified copy of the death certificate without cause of death showing should be recorded in the public records of the county where the property is located to provide evidence of death.  If applicable, an Affidavit of No Florida Estate Tax Due should also be recorded to clear the title from any potential estate tax lien as well as an Affidavit of Continuous Marriage when necessary.

The Personal Representative or Trustee is responsible for filing all applicable tax returns and paying any applicable tax liability.  This may include filing the federal estate tax return (IRS Form 706), if its value is above a certain limit, and filing income tax returns for the estate while it remains open (IRS Form 1041).

It is important to note that the foregoing is not an exhaustive list of things to do in this regard but does encompass the basics.  Not all estates will require every step listed above and some may require more.  This outline is provided only as general information for educational purposes and is not intended to provide specific legal advice.  You should seek LEGAL ADVICE from a Florida attorney such as those with the law firm of CASERTA & SPIRITI.

In Florida estate planning, a “beneficiary” is someone who has the legal right to receive the benefits of a Will, Trust, financial account or Life Insurance policy as well as a Ladybird or Enhanced Life Estate Deed.  A beneficiary under a Last Will & Testament(will) has the right to receive distributions of estate assets through the said will.  Trust beneficiary is someone who receives distributions of trust assets or income.  A Life Insurance policy’s beneficiary holds the right to receive the policy’s payout when the insured dies, A designated beneficiary of a retirement account, brokerage account or bank account automatically receives the account or its proceeds upon the owner’s death.

It should be noted that the right to receive payments or assets is not the only right enjoyed by beneficiaries.  Under Florida law, beneficiaries are afforded numerous other privileges and protections, depending upon the instrument or document involved.  A designated beneficiary under a will, trust, insurance policy or other instrument, should understand all of their legal and contractual rights in order to take advantage of the beneficiary position.

In a general and brief overview, although the terms of beneficiaries and heirs are often used interchangeably, there is a distinction between an heir and a beneficiary in Probate.  A beneficiary is someone named in a Last Will & Testament and has a right to receive assets conveyed or distributed by a will.  An heir, instead, stands to inherit assets from a deceased party or decedent who did not have a will under the state’s intestate succession laws.  Heirs are usually relatives of the decedent, but beneficiaries don’t necessarily have to be family members.

The trust beneficiaries are named in a trust document and have rights primarily derived from the terms of the subject trust and duties of the trust’s trustee.  Trustees must administer their trusts in good faith and in accordance with the best interests of beneficiaries and the purpose of the said trust.

Other types of Beneficiaries such as  P/O/D, T/O/D, I/T/F, Retirement Accounts, and Life Insurance stand for payable on death, transfer on death, in trust for and are similar designations allowing an asset’s title or ownership to automatically pass to a named beneficiary upon the owner’s death.  In Florida, POD and ITF designations are commonly used for bank and money-market accounts and CD’s.  TOD designations are usually associated with stocks, bonds, and brokerage accounts.  The benefit of either designation is that, after the owner dies, the asset vests in the listed beneficiary or beneficiaries’ name or names with no need for probate court proceedings.

A POD or TOD designee has the right to receive the subject asset in the future, i.e., at the time of the owner’s death, but doesn’t acquire a present interest when the designation is made, similarly to a life interest in real estate.  Consequently, where a remainderman of a life estate or enhanced life estate automatically receives title of the said real estate after the death of the property owner, TOD, ITF, or POD beneficiary has same automatic receipt upon the death of the account’s owner.

Retirement accounts, such as 401k’s and IRA’s in Florida, allow the account owner to designate a beneficiary to automatically receive the account upon the owner’s death.  As with a POD beneficiary, a retirement account beneficiary does not need to go through probate administration.

When the account transfers, the beneficiary has three basic options for accepting it (or four if the beneficiary is a spouse), i.e., withdraw the money and pay the income taxes now; leave the account in place and accept required minimum distributions over the beneficiary’s life expectancy; or roll over the account into an “inherited IRA,” which allows for continued tax deferral but no additional contributions.  A spouse who is a beneficiary can do any of the above or roll over the account into an IRA in the name of the surviving spouse, which is then treated as if it had always belonged to the surviving spouse. However, a review of the CARES Act may be necessary to see what time frames may have been changed or altered.

Life insurance beneficiaries have the right to receive a policy’s payout upon the death of the insured.  With most policies, the beneficiary has numerous settlement options to choose from, ranging from a single, lump-sum payment to an annuitized “life income” payout that provides regular guaranteed distributions or disbursements for the rest of the beneficiary’s life.  Under Florida’s exemption laws, life insurance proceeds are normally protected from attachment by the beneficiary’s creditors in most cases. Beneficiaries can usually claim life insurance proceeds as an exempt asset in bankruptcy as well.

Even though title or ownership passes automatically from a legal standpoint, as a practical matter, beneficiaries need to take action to ensure they receive their full benefits accordingly.

If a designated beneficiary has questions or needs representation relating to rights they hold as a beneficiary as well as how to make claims therefor in Florida, attorneys at the law firm of CASERTA & SPIRITI can assist them to better understand and protect their rights.

Young drivers and families on a budget try to extend the life of various expensive items to maximize their finances.  However, old, or bald tires may not be worth the effort.

Simply put, bald tires are not safe. A car with bald tires may not break down after driving hundreds of  miles on the highway; however, bald tires can cause a lack of control, hydroplaning, blow-outs, and understeering.  Bald tires in wet weather also increase stopping distances.

When the treads on a tire are getting worn down, an automobile or other motor vehicle can become dangerous. The vehicle will not be able to brake as easily while driving in rain, snow, and hydroplaning can happen rapidly when treads are low.  In Florida, cars can be inspected and will not pass the inspection with bad tires. The tires will need to be replaced before the car can be tagged and get a pass on inspection.

An additional consideration in Florida is that summertime type heat(year-round) can multiply your risk, primarily due to rubber wearing off more quickly when the weather is hot. Consequently, when a tire is bald in the summer or warm-hot weather, it can create dangerous situations such as unexpected blow-outs, leading to the possibility of a roll-over accidents, which are some of the most dangerous collisions on the road.  Florida drivers can avoid blow-out tires by maintaining their tires and not driving on tires that are bald.  In many cases, bald tires are the result of faulty alignment, which causes the tire not to wear evenly. The outer and inner edges of the tire can wear out before the rest of the tire leading to the tire becoming worn out prematurely. Weather cracking can also cause issues as can the tire’s air pressure.

Furthermore, worn tires can run over debris on the roadway and get punctured, causing a tire failure, which may otherwise not happen on tires with more tread.

According to a National Highway Traffic Safety Administration’s Crash Causation Survey, tire related problems are responsible for nine (9%) percent of all accidents. These incidents could include tread separations, blow-outs, bald tires, and under-inflation.

Under Florida law, the minimum tread depth in the state is 1/16 or 2/32 of an inch.  To informally measure-if you insert a penny into tread grooves across the tire and most of the Lincoln’s head is out, it needs replacing. The official method of measuring is a gauge, which can read the remaining tread depth.

There appears to be no specific Federal laws dealing with tread depth, but forty-two(42) states and Canada, do have regulations.  They consider 2/32 of an inch to be the minimum legal tread depth.  Two(2) other states, including California, consider one-thirty second to be the minimum. Six(6) states have no standards.  HOWEVER, since 1968, Federal law has required a raised bar(i.e., wear bar) be molded across all tires.  When tires are worn enough, then this bar becomes visible and indicates there’s just 2/32 of an inch of tread remaining.  In fact, all tires sold and manufactured in North America are required to have this tread depth indicator called wear bars. Again, they run underneath the rubber and become visible when tires have worn down to the legal limit.  This bar makes it easier to know when tires have worn out-then, it is time for a new tire or tires. At such time, the same should be replaced immediately!

Further, tires are considered legally worn out in most states when the tread depth is less than 2/32 of an inch.  Driving on tires with tread worn down this far is dangerous and could even get a Florida driver a ticket, and again, one can informally measure with a penny to see if any part of Lincoln’s head is covered, the tread depth is still adequate.

Drivers can drive on bald tires for as long as they feel comfortable while probably risking their lives. Technically, a driver could conceivably drive on bald tires until they burst on the freeway, but NO responsible person would endorse it.

Worn out tires can also develop bulges and blisters that create weak spots on their surfaces. These can increase the chances of a sudden blowout, and can also lead to skidding, hydroplaning, or losing control of your car by reducing the tire’s ability to grip the road.

Simply put, balding tires are tires that have minimal or no tread left. A tire’s tread wears down with each mile driven, and there are various factors that can affect how quickly it wears out. Knowledgeable drivers should be proactive in tire care and can prevent the risk of driving on bald tires.

Bald tires will cause a steering wheel to vibrate and a car to shake. Furthermore, if a Floridian continues driving on bald tires, those tires are likely to blow-out, and having a tire blow-out at highway speeds is extremely dangerous, especially if it is a front tire.

Florida Statute Section 316.610 covers the safety of a vehicle, including tires.

Tires are the only part of a motor vehicle that touch the roadway and should be carefully maintained. Having proper tread on vehicle tires is what allows drivers to safely travel, especially in wet weather,

From a practical standpoint, it may be very difficult for a law enforcement officer to see if your tires are bald while traveling, but if a motor vehicle is stopped, a police officer can make the observation and issue a citation or ticket based on his or her own professional judgement.

The aforesaid Florida Statute is as follows:

“316.610 Safety of vehicle; inspection.—It is a violation of this chapter for any person to drive or move, or for the owner or his or her duly authorized representative to cause or knowingly permit to be driven or moved, on any highway any vehicle or combination of vehicles which is in such unsafe condition as to endanger any person or property, or which does not contain those parts or is not at all times equipped with such lamps and other equipment in proper condition and adjustment as required in this chapter, or which is equipped in any manner in violation of this chapter, or for any person to do any act forbidden or fail to perform any act required under this chapter.

(1) Any police officer may at any time, upon reasonable cause to believe that a vehicle is unsafe or not equipped as required by law, or that its equipment is not in proper adjustment or repair, require the driver of the vehicle to stop and submit the vehicle to an inspection and such test with reference thereto as may be appropriate.

(2) In the event the vehicle is found to be in unsafe condition or any required part or equipment is not present or is not in proper repair and adjustment, and the continued operation would probably present an unduly hazardous operating condition, the officer may require the vehicle to be immediately repaired or removed from use. However, if continuous operation would not present unduly hazardous operating conditions, that is, in the case of equipment defects such as tailpipes, mufflers, windshield wipers, marginally worn tires, the officer shall give written notice to require proper repair and adjustment of same within 48 hours, excluding Sunday.” [emphasis added].

 

The Florida Department of Highway Safety and Motor Vehicles recommends the following: “Tires are your vehicle’s first line of defense on the road. With proper care and maintenance, they will keep you safely motoring along Florida’s highways and help you and your loved ones ‘ARRIVE ALIVE’.”

Florida and many other states have rules, regulations or laws concerning tires.  Police in this state can stop and pull a diver over for driving a motor vehicle with old and/or worn-out tires. It is concerning that many Florida motorists are somehow unaware of the laws pertaining to as well as the risks involved with driving on unsafe tires and –YES-even be ticketed for it!