If a Florida resident is contemplating estate planning, they have heard or seen the term “probate” come up quite often. If one has never gone through probate, they should learn more about it. Probate is the legal process through which a deceased person’s assets are distributed to surviving heirs or beneficiaries. Many families work hard on their estate plans to limit the potential impact probate will have on their family.

During probate, the court will supervise the administration of the deceased individual’s estate. This process starts with validating the Last Will & Testament. A handwritten note may help influence the court’s decisions, but it is only valid if it has been signed by two (2) witnesses. In Florida, the Last Will does not necessarily have to be notarized. However, to avoid requiring the two (2) witnesses to testify that the Last Will is valid, said Last Will must be notarized after the maker and the two (2) witnesses sign it a second time to make it self-proving. Once the Last Will is deemed valid, it will serve as the legal document guiding the distribution of assets.

The court will appoint a Personal Representative or Executor who will be responsible for managing the estate during the probate process. They are required to identify and gather the decedent’s assets, notify creditors and heirs or beneficiaries, pay outstanding debts or taxes, then distribute the remaining assets as specified in the Last Will or by Florida law if no Last Will exists. A well-organized estate may be able to make quick work of these tasks, but the more complicated the estate, the more likely it will face difficulties during probate.

While probate is a necessary legal process in many cases, there are many reasons why so many people try to avoid it entirely. The main disadvantage of probate is that it can be a very time-consuming process. It can take months to years to complete. These delays can lead to financial hardships as the Personal Representative works to itemize all the assets and beneficiaries await their inheritance.

Probate can also be costly. All from the mounting fees from the courthouse proceedings to property appraisals can affect the value of the estate. For estates with additional property abroad, or in another jurisdiction, there could be an entirely different process compounding the fees and potentially the time it takes to get through probate. 

For many families, the idea of their loved one’s estate being public record is concerning. Probate is a public process, so the details about the estate, including its value and how it was distributed become a part of the public record. This lack of privacy can also lead to family disputes. The proceedings sometimes lead to beneficiaries having disagreements about how assets are distributed, which can strain family relationships. 

After working diligently one’s entire life, the last thing they want is for the government, through the County Probate Court, to oversee their estate distribution. To do this, every individual needs to plan well in advance to ensure that their assets are protected. It is important to remember that estate planning is for everyone, and there are many legal strategies that will preserve the legacy a Florida resident has created.

Working with an estate planning attorney is one’s first line of defense against the potential drawbacks of probate. An effective estate planning attorney will help organize and examine the specifics of an individual’s estate and make recommendations like establishing a trust, gifting strategies, and beneficiary designations as well as Lady Bird Deeds to accomplish this goal. Every estate is unique and estate planning attorneys can provide guidance.

The foregoing is a brief and general overview of the strategies to avoid probate in Florida.

If you have any additional Questions regarding the foregoing or have any legal issue or concern, please contact the law firm of CASERTA & SPIRITI in Miami Lakes, Florida.

Personal Representatives (i.e., PRs) can be the relatives and/or friends designated or named in a Last Will & Testament as the final administrator of a deceased party’s estate.  If a person has agreed to serve in such a capacity, one may or may not know the outlines of the tasks or duties they will face. Such tasks may include closing down accounts, inventorying assets and distributing them according to the terms or bequests within the Will document.  Even when relatively simple, such as when a spouse passes away and leaves all to the other spouse, the paperwork may appear daunting.  Consequently, when it does get more complicated, for example when a widower passes away and there are many children and assets, there will be much more work involved.

Acting as a PR may not be an easy task.  The paperwork involved can exceed one’s imagination.  The personal side can also be difficult.  One may need to pacify impatient heirs or beneficiaries or mediate domestic disputes.  Taking on the role as a PR is a true sign of devotion to the dearly departed party.  Even if one gets paid to act as a PR, it is more a labor of love.

The following steps may ensure that when the time comes to serve as a PR, one in turn can honor the deceased party, serve their heirs or beneficiaries, and perform their task as effectively and efficiently as possible.

To ensure when acting in the role of a PR they understand the Testator or person who creates a Last Will’s terms or wishes, one should ask the said person to be specific about what he or she truly wants to happen with their estate after their death within the terms or provisions of said Last Will.  If possible, discuss the terms of the Last Will amicably prior to death.  Also, do not be surprised or get angry if there are unexpected bequests or exclusions.  If those bequests or exclusions are bothersome, then nicely request the maker of the Last Will explain themselves in a final letter of instruction or an informal document to be read after death which explains their decisions.

Upon the subject person’s death, virtually nothing important can happen until the original Last Will is located. It is best to hire an experienced attorney to assist and then file or deposit the original Last Will & Testament along with a Certified copy (sometimes considered an original) death certificate with the applicable county probate court in the state of Florida.  Thereafter, when the appropriate Petitions and other related documents are filed, one can obtain Letters of Administration, Order Admitting Will & Appointment of PR along with an Order for the Estate Depository or bank account if a Formal Administration, the Notice to Creditors must be Published in an appropriate local newspaper and await the appropriate passage of time for the Creditors, if any, to file claims,  If a Summary Administration, then file Petitions and publish the Notice to Creditors and await the appropriate passage of time to submit appropriate Orders.  If any specific creditors are known, a Notice of Creditors is mailed directly to them, including Florida Medicaid, especially if the subject party died after the age of 55. 

If a Formal Administration, the Letters of Administration recognizes the PR, which is a required step before they can take any action on behalf of the deceased’s estate.  Order a number of Certified copies of said Letters as well as the death certificate.  The PR will need them to cancel credit cards, sell a home (along with a Petition and Order authorizing it), transfer title to a car, if necessary, having monies transferred from the individual accounts to the estate account, and shutting off utilities, among others.

The PR must also safeguard assets such as a vacant house which can attract thieves who review the obituaries as well as relatives and neighbors who may act in their own self-interest.  One should lock up the property and secure all items from theft, including jewelry and other valuable items, in a safe location.  Photograph all assets as well as the inside and outside of the home to document its condition and its contents.  Some family members may feel entitled to said assets shortly after death.

Prepare to handle many tasks of the deceased’s life such as maintaining and selling or conveying a house, stopping Social Security payments, settling debts, closing financial accounts, meeting tax filing deadlines, etc.  It is best to create a To-Do list and keep meticulous records for one’s own protection and to those he has a fiduciary duty (i.e., heirs or beneficiaries).

Many administrative tasks can be done by the PR and/or family of the deceased to avoid unnecessary expenses or fees, however, it is recommended that an experienced attorney be hired to assist.

The foregoing is a brief and general overview of the duties and responsibilities when acting in the role of a Personal Representative in Florida.

If you have any additional Questions regarding the foregoing or have any legal issue or concern, please contact the law firm of CASERTA & SPIRITI in Miami Lakes, Florida.

Every Florida resident should have an estate plan. Even a person who does not have substantial property holdings or assets needs to understand the legal consequences of their death. Without a well thought out estate plan, an heir or beneficiary may incur unnecessary legal expenses and face delays in settling the affairs of the deceased relative which could have been avoided or reduced.

A basic estate plan consists of the following documents:

Last Will & Testament: A document which names a beneficiary or beneficiaries who are to receive the deceased party’s property and assets and names a person in charge of their estate and to pay all proper debts.

            Durable Power of Attorney: Appoints someone to conduct specified financial transactions on behalf of an incapacitated person while alive. It remains intact, or “durable,” even if a person suffers mental incapacity in the future.

Healthcare Surrogate or Medical Directive: Appoints someone to make health care or medical decisions & obtain medical information while still alive.  This medical power of attorney also remains intact, or “durable,” even if a person suffers mental incapacity in the future.

Living Will: A written statement indicating the medical care, particularly life-preserving/saving or resuscitation measures, in the event he or she becomes unable to make his or her own decisions.

Preneed Guardian:  This declaration allows an individual to select who they would like to take care of themselves if they ever become incapacitated or who will become their minor child’s guardian if the child’s last surviving parent dies or becomes incapacitated. The Declaration or Designation of Preneed Guardianship can list multiple people in the order of preference.

Lady Bird Deed:  Formally known as an Enhanced Life Estate Deed, it is designed to allow property owners in Florida to transfer real property to others automatically upon their death while keeping use, control, and ownership while alive.

Designation of Beneficiaries:  A beneficiary designation involves naming the person who will directly receive an asset or funds in case of the death of its owner. Assets that allow for beneficiary designations include insurance policies, retirement accounts such as 401(k) plans, IRAs, annuities, brokerage and other financial or bank accounts.

Assuming probate is necessary, then Probate is a court-process or procedure to authenticate a decedent’s Last Will & Testament. A Personal Representative (in some states called an Executor) usually named in the said Last Will, is appointed by the court to carry out the administration of the deceased party’s estate. The most important duties of the personal representative are to locate all the decedent’s property, notify the decedent’s creditors of the probate, pay the decedent’s debts, and distribute the decedent’s property to the beneficiary or beneficiaries named in the Last Will.

There are essentially two types of probate proceedings:

Summary Administration:  Summary administration can only be used when the total value of decedent’s assets subject to probate are $75,000 or less, or when the decedent has been dead for more than two (2) years and no Personal Representative is appointed. 

Formal Administration: Formal administration is used for all other estates or whenever a Personal Representative is needed for other purposes.

A simple probate proceeding can take up to a year. There are many circumstances which can cause the probate proceeding to last much longer than a year. Distribution of property to the beneficiary or heir does not take place until the estate has been fully administered. With a properly executed estate plan, the cost of the probate and the delay in the distribution of the property to the beneficiary or beneficiaries can be reduced or avoided.

An experienced attorney can assist in formulating a suitable Estate Plan and minimize the need for probate.

The foregoing is a brief and general overview of the benefits of consulting with an Estate Planning attorney in creating an appropriate Florida Estate plan.

If you have any additional Questions regarding the foregoing or have any legal issue or concern, please contact the law firm of CASERTA & SPIRITI in Miami Lakes, Florida.

Fortunately, any money left in an IRA, 401(k), or pension at one’s death can easily bypass the probate process; they simply need to name a beneficiary or beneficiaries on these retirement accounts, and they will pass directly to the people named without the need for probate.
There is no way to get an IRA out of an estate except by taking the assets out of the IRA, paying income tax, and giving the money away before death. An IRA is subject to estate tax when one dies, and their beneficiaries will have to pay income tax as the assets are distributed from the IRA.
Retirement accounts are generally protected from creditors under Florida law. Florida Statute 222.21 protects IRAs, 401k plans, and other tax-qualified plans. If a judgment debtor owns any of these accounts, the creditor cannot reach money so long as it is held within the plan.
If a Florida resident has a Roth IRA, one can effectively avoid estate tax issues by naming heirs as a beneficiary under the account rather than passing it through their Last Will & Testament. This allows them to take over the account rather than inheriting it, sidestepping any potential estate taxes.
The 5-year rule applies to taking distributions from an inherited IRA. To withdraw earnings from an inherited IRA, the account must have been opened for a minimum of five years at the time of death of the original account holder.
Planning is even more crucial due to the special rules associated with retirement accounts, such as IRAs and 401(k)s. Retirement assets generally transfer directly to properly designated beneficiaries without passing through probate.
When a taxable IRA is inherited, the beneficiary who subsequently takes distributions pays income tax, just as the IRA owner would have, had he or she lived. The deceased IRA owner would not have paid the estate tax as well since he or she would still have been alive.
An inherited IRA, also known as a beneficiary IRA, is an account that is opened when an individual inherits an IRA or employer-sponsored retirement plan after the original owner dies. Additional contributions may not be made to an inherited IRA. Rules vary for spousal and non-spousal beneficiaries of inherited IRAs.

Retirement accounts like an IRA, Roth IRA, 401K, 403b, 457 and the like do not belong in a trust. Placing any of these assets in a trust would mean that one is taking them out of the individual’s name to retitle them in the name of their trust. One cannot put their individual retirement account (IRA) in a trust while they are living. Said person can, however, name a trust as the beneficiary of their IRA and dictate how the assets are to be handled after their death. This applies to all types of IRAs, including traditional, Roth, SEP, and SIMPLE IRAs. Accounts such as a 401(k), IRA, 403(b) and certain qualified annuities should not be transferred into a living trust. Doing so would require a withdrawal and likely trigger income tax. The primary disadvantage of naming a trust is that the retirement plan assets will be immediately subjected to Required Minimum Distributions (RMD), calculated based on the expected lifespan of the oldest beneficiary. However, naming a trust as a beneficiary is a clever idea if beneficiaries are minors, have a disability, or cannot be trusted with a considerable sum of money. Again, the major disadvantage of naming a trust as a beneficiary is the Required Minimum Distribution payouts.

Those individuals who take retirement planning seriously, they are likely contributing to an individual retirement account. The idea is to be able to draw from these resources when one retires, however, what if a person does not need the money?
Under these circumstances, the subject account could be part of an estate plan, and this is why IRA estate planning is relevant. The exact details will vary depending on the type of account that it is, and there are two of them that are widely used.
One of these is the traditional individual retirement account, and the other one is the Roth IRA. The major difference between these two accounts is the way that taxes are paid.
Contributions into a traditional account are pretax contributions, so withdrawals are subject to regular income taxes. The Roth variety works in the opposite manner. One puts money into the account after taxes have been paid, and as a result, distributions are not subject to taxation.
Now that the basics have been outlined, one can then look at five key facts that should be known about these accounts and what they mean for IRA estate planning.
The idea is for these accounts to be used when a person reaches senior citizen status. As a result, they are penalized if they withdraw money from their traditional individual retirement account before they are 59.5 years of age.
There are a few exceptions to this rule. An individual can take money out of the account to pay medical bills or school tuition, and they can withdraw up to $10,000 to help finance a first home purchase.
Roth account holders can extract portions of the principal at any time, but they must wait until they are 59.5 years old to access the earnings in a penalty-free manner.
Since the Internal Revenue Service wants to get some money before a person passes away, there is a minimum distribution requirement (Required Minimum Distributions) for traditional account holders. An individual must start receiving these distributions when they are 73 years old.
Distributions are never required when one has a Roth account. The purpose of the requirement is to give the IRS an opportunity to start collecting taxes, but Roth account holders have already paid them.
At the end of 2019, the SECURE Act was enacted. It changed some of the individual retirement account parameters. The required minimum distribution age for a traditional account is 73; it was 70.2 before the first SECURE Act raised it to 72.
Another change allowed a traditional account holder to continue to contribute to the account indefinitely. This was always the case with Roth accounts. However, before the SECURE Act, traditional account holders had to stop contributing when they reached the mandatory distribution age.
Another individual retirement account reform bill informally called SECURE Act 2.0 was enacted late in 2022. It increased the required minimum distribution age for traditional account holders to 73 in 2023, and it will eventually go up to 75.
Employers are now required to enroll all eligible employees into their 401(k) plans, and employees can opt-out. Another change allows employers to provide retirement account matches of student loan payments that are made by their employees.
If a deceased party (account owner) leaves either type of individual retirement account to their spouse, the said surviving spouse could either roll it over into their own account or title it as an inherited account and assume the beneficiary role.
For non-spouse beneficiaries, the inheritor would be required to take minimum distributions for both types of accounts. They would be taxable for traditional beneficiaries, and Roth IRA beneficiaries would not pay taxes on their IRA income.
Another change that came about due to the SECURE Act is not a favorable one from an estate planning perspective. Before it was enacted, an individual retirement account beneficiary could stretch the distributions out for any period to maximize the tax benefits. This was especially useful for Roth account beneficiaries. Now, all the resources must be cleared out of the account within 10 years.
Stretch IRAs allowed retirement-account beneficiaries to minimize total tax liability for the inherited funds while also maximizing deferred growth. Under optimum conditions, the result was exponentially increased wealth in the hands of the heir. Since the SECURE Act became law, estate-planning attorneys have been hard at work developing alternative strategies to approximate comparable results.
An effective but limited approach is to convert a traditional IRA into a Roth IRA while the original owner is still alive. Roth distributions are not taxable income, so, even though the inherited account will still need to be emptied within ten years, the funds will not be eroded by taxes during the ten-year period. In theory, each tax-free distribution is immediately reinvested in another tax-friendly investment to allow the wealth to continue growing.
The big disadvantage of converting to a Roth is that, when a person makes the conversion, they have to pay the income tax due for the account funds (ideally after a person is retired and the marginal tax rate is lower). Also, the money used to pay the taxes is no longer growing tax-deferred in the account.
A more complex, but potentially more rewarding, approach is to replace a future Stretch IRA in Florida with permanent life insurance. Because RMDs and whole life premiums are both based in part on life expectancy, it is often possible to buy a policy with a death benefit comparable to the IRA’s starting value and premiums that can be fully paid-for with IRA distributions. Upon retiring, the account owner begins taking RMDs and putting the IRA funds toward whole life insurance premiums. Taxes are owed for each distribution when made, and the corresponding premium payments decrease the IRA’s balance and increase the insurance policy’s cash value. If the retiree lives longer than expected, the policy’s cash value can be tapped to help fund later years of retirement.

When the policy’s death benefit is ultimately triggered, the payout goes to the beneficiary tax-free (life insurance proceeds are not taxable income). Alternatively, policy proceeds can be paid into a Florida dynasty trust set up to spread out distributions over the beneficiary’s lifetime like with a Stretch IRA (or for whatever other period one prefers). A trust can have the added benefits of protecting the wealth from squandering and shielding it from claims of a beneficiary’s creditors.

Any funds remaining in the IRA can be inherited as normal and must still be distributed within ten (10) years. However, because the balance has been reduced to pay policy premiums, the tax consequence should be mitigated. Since life insurance proceeds are tax-free, they can be invested in full into another tax-deferred investment and continue growing with no tax liability until distribution.
While the SECURE Act undoubtedly makes it more difficult to maximize long-term, tax-deferred growth in an inherited IRA, a thoughtful estate plan can at least partially compensate for the changes.

An experienced Florida estate-planning attorney can assist a Florida resident create a tax-efficient strategy that accounts for the new rules and provides the greatest benefit to one’s heirs.

The foregoing is a brief and general overview of the benefits of consulting with an Estate Planning attorney regarding the use of IRAs in a Florida Estate plan.
If you have any additional Questions regarding the foregoing or have any legal issue or concern, please contact the law firm of CASERTA & SPIRITI in Miami Lakes, Florida.