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.

Florida’s humid climate and swampy terrain as well as the state teeming with underground caves, porous rock layers and large bodies of water are but some of the elements responsible for sinkholes. These circumstances should be a critical concern to homeowners in this state. Therefore, every homeowner in Florida should understand exactly what sinkholes are, the dangers posed by them, and what to do if a sinkhole damages a home or property.

Sinkholes usually happen when water comes into contact with minerals and rock under the surface layer of the ground and causes cavities to appear in the form of a depression or hole above ground. Sinkholes most commonly appear in places where there are substantial amounts of water and therefore are much more common in this state than in many other locations in the nation.

In 2011, Florida legislators believed that too many sinkhole damage claims were being made over minor issues. In response, a law was passed that restricted the ability of homeowners to recover compensation for minor to moderate sinkhole damage. Under the 2011 law, property owners could only recover for sinkhole damage in cases where the effects of the damages were catastrophic. Unfortunately, this piece of legislation proved to be far too restrictive. While homeowners could recover for major sinkhole damage, such as a house being totally destroyed, recovering for a cracked floor or wall became extremely difficult. Many homeowners were being denied the ability to recover for moderate foundation damage. Subsequent legislation in 2016 sought to remedy the problems created by the 2011 sinkhole insurance reforms.

The risk posed by sinkhole conditions had prompted the Florida Legislature to enact legislation making sinkhole coverage mandatory (i.e., Florida Statute 627.706). Under Florida law, any property insurance provider operating in Florida must provide the option of catastrophic ground cover collapse coverage. Catastrophic ground cover collapse is defined in the statute as geological activity that causes a sudden collapse of the ground, an obvious depression, some kind of structural damage to a covered building and a government agency condemning the insured damaged home accordingly.

Florida Statutes require authorized insurers to cover catastrophic ground cover collapse, but damage, outside a catastrophic ground cover collapse, caused by a sinkhole may not be covered by the policy if it does not specifically include sinkhole coverage.

Although Florida insurers are required to provide homeowners insurance policies that provide protection from “catastrophic ground cover collapse”, that doesn’t mean the standard homeowners insurance policy will cover any instance of sinkholes.

Florida provides policy add-ons which can protect property from sinkhole damage.

Adding to or ensuring sinkhole insurance coverage is in their homeowners policy can aid a Floridian protect their personal belongings and financial future. Sinkhole insurance provides coverage for the structure of one’s home and any personal belongings damaged by a sinkhole.

While phrased slightly different, there is no geological difference between catastrophic ground cover collapse and a sinkhole. However, many insurance claims that are filed for coverage of sinkholes are denied due largely in part to the wording of this specific statute. This is one of the reasons why claimants or injured parties should obtain experienced legal assistance as soon as possible after the subject incident (i.e., a sinkhole on their property).

A sinkhole can unexpectedly lead to the loss of property including a person’s possessions and the house or building or structure itself. This situation can be an incredibly stressful and overwhelming ordeal, and it is understandable if the first thought is to attempt to make the situation conclude rapidly by proceeding on their own. However, if a Florida resident or property owner is the victim of sinkhole damage, it is imperative that they not attempt to file an insurance claim without competent legal counsel. The denial of their claim would only cause an additional headache, and it is recommended to initiate the claim with the best potential of obtaining fair compensation. Consequently, for many Florida residents and property owners that includes hiring an experienced attorney. 

The foregoing is merely a general and brief overview of sinkholes and insurance 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.

Even if it is minor, an auto accident can be a sudden and unsettling experience. A Florida resident may not know what to do in the immediate aftermath. In addition to seeking medical attention, there are certain steps that one should take or consider taking after a motor vehicle accident. Acting promptly and decisively can be critical in receiving the assistance that one needs to address their injuries and property damage. This article is a basic overview of some key issues to keep in mind.

No matter who was at fault, a victim of an accident will need to report the accident to their insurer. Failing to timely report the accident may jeopardize their ability to later bring a claim. One may need to report the accident to law enforcement, depending on whether it caused injuries or a certain amount of property damage. Even if one does not need to report the accident to law enforcement, it may be helpful to call the police to the scene. Their investigation can produce evidence that may bolster a claim.

A party of an accident should gather evidence, such as take pictures, speak with witnesses, and obtain official reports.

If a person is physically able, they should take photos and possibly videos of the accident scene to use as evidence in their later claim. One can capture the position of the vehicles after the crash, any damage to the vehicles, any debris in the road, document initial injuries, as well as the scene surrounding the accident. For example, if there was a traffic light or stop sign, a party to the incident may want to take a photo that shows the position of the vehicles relative to the light or sign. One should also get the contact information of any eyewitnesses to the accident, such as pedestrians or people in other cars. These individuals can corroborate the accurate account of the events leading up to the accident. If the police come to the scene, they will generate a report. A party to the subject accident get a copy of a police report since this can be an important document for an insurance company.

An injured party in an accident should seek prompt medical treatment to ensure a better medical recovery and to properly document the resulting injuries and in Florida to preserve a claim for PIP (Persona Injury protection) benefits to cover medical treatment and bills. In Florida, one must go to the hospital or an accident clinic and have a medical professional diagnose them with an “emergency medical condition” within 14 days to receive Personal Injury Protection insurance benefits. Otherwise, the said party will not be eligible for PIP coverage, and they will not be able to use their PIP policy to file a PIP claim. All car insurance companies in Florida offer this injury care as part of their insurance coverage. Consequently, if a person received treatment within 14 days from a car collision in Florida and suffered only non-emergency injuries (non-emergency medical condition), they can only receive $2,500 in benefits. However, if they suffered an “emergency medical condition,” they can receive the maximum payout available from their PIP coverage as long as they sought medical attention within the previously mentioned 14 days.

A person can potentially sue many different parties after a car accident, and one should not just assume that the fault lies only with one or more drivers. By bringing all the responsible parties into the claim or lawsuit, one may increase the chances of securing all the compensation that is due. In addition to drivers, defendants or responsible parties may include the employer of an at-fault driver if they were on the job at the time of the subject accident, as well as a manufacturer or distributor of a vehicle or auto part that was defective. In some complex situations, the entity responsible for designing or maintaining the road or its surroundings could be liable as well.

Hiring a lawyer is recommended. A lawyer may be helpful when serious injuries are involved or when fault is disputed.

If the accident was relatively minor and involved only property damage, a party to an accident may not need to go to the trouble and expense of hiring a lawyer. However, if a person was seriously injured, or if their claim seems likely to be contested for any reason, they should get an attorney on their side. Auto accident or Personal Injury lawyers usually work on a contingency fee basis, which means that they get paid only when and if the client/victim gets paid from a recovery again the negligent or responsible party or parties. One should make sure to choose an attorney who relates well to them personally, as well as someone who is experienced and competent in handling similar cases.

In some cases, fault is straightforward, liability is promptly conceded, and any dispute concerns the extent of the victim’s damages. Often, though, a defendant/responsible party or their insurance carrier will defend a claim vigorously. They may argue that the victim failed to comply with a procedural rule, such as the statute of limitations (state deadline for filing a claim in court and/or a Notice requirement), or they may raise an argument of comparative or contributory negligence. These rules vary depending on the state, but the general concept is that a victim’s damages award can be reduced (or eliminated entirely in some cases) if the defendant or responsible party can show that the said victim or plaintiff was at least partly responsible for the accident. A party to an accident should not make any admission of fault to an insurance company but instead should discuss this issue with an attorney.

The foregoing is merely a general and brief overview of tips or suggestions as to what to do after an automobile accident in Florida occurs.

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.

Transferring assets or wealth from one generation to another is a priority for most Florida families. For instance, if a person inherited assets from their parents, it may be important to them that they are able to give assets to their children and grandchildren as well. Accordingly, there are unexpected events that can upset long-term plans, and divorce may be one of them.

If one is worried about how a pending divorce will impact their assets, including shielding assets for their heirs, beneficiaries, and/or children, it is important to speak to attorneys or law firms who handle both Divorce (dissolution of marriage) as well as Estate Planning.

In certain situations, inherited assets are kept or held as separate property. Marital property refers to assets that are jointly owned, and most assets gathered during a marriage fall under this category. However, if one received an inheritance from a member of their family and it is completely in one’s name, said person may be able to retain those assets through the divorce process and then give them to their heirs, whenever they choose to do so.

However, matters can become complicated when commingling is part of the process. An example, if an individual inherited money and then deposited it into a joint account, one that they used to pay for their marital expenses such as mortgages, taxes, utilities, food, vacation, etc., it could be argued that those funds are marital property, i.e., assets open to division during a divorce.

Of course, when an inheritance is large, it could be argued that a percentage of the inheritance is marital property and a part of it is separate. While this is possible, it is important to recognize that proving assets are separate, and not subject to division, can be difficult. If a Florida resident wants to ensure their heirs will receive those funds, then one should ask about and explore the benefits of utilizing various Estate Planning tools. These tools can be used by all levels of society and not solely by the wealthy. In fact, these tools are a useful way for anyone to transfer assets to beneficiaries or heirs.

Usually in Florida, marital assets are subject to equitable distribution during a divorce. Discussing this process with one’s lawyers will assist them to fully understand the scope of their current and future financial circumstances. All assets can be analyzed, including real estate holdings, investment accounts, retirement accounts, and business interests, among others.

Once all the marital assets and debts have been reviewed, Divorce and Estate Planning lawyers can jointly walk them through what a Florida court may view as a fair division of assets. Thereafter, the subject individual can determine what their post-divorce goals may be, including establishing assets for their children, and can be the basis for the negotiation process in the subject Florida divorce.

In this regard, one must define their future financial goals in their divorce and look past the emotional daily issues and consider their important long-range plans and share them with their attorneys experienced in both the dissolution of marriage process as well as estate planning.

The foregoing is a very brief and general overview of the benefits of consulting with both a Divorce lawyer as well as an Estate Planning attorney prior to and during the divorce process 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.

Florida statutes define non-marital or separate assets as the property received by either spouse separately by bequest, descent, non-interspousal gift, or devise. Therefore, an inheritance is considered a non-marital asset. A spouse should not be entitled to any part of another spouse’s inheritance.

Regarding an Estate Plan created during one’s marriage, per Florida Statute Section 732.507, a finalized divorce decree or final judgement of dissolution of marriage will remove a former spouse from receiving property, being assigned power of attorney at the other ex-spouse’s death or being named personal representative or executor of their estate.

After divorce, as the policy or account owner, one may designate their former spouse as beneficiary. To do that, a person should sign a governing instrument providing the benefit will be payable to their ex-spouse.

Under Florida law, when a bank account is titled in joint names and one of the persons dies, the account becomes the property of the surviving person on the account.

If a legal absolute divorce occurred before their spouse died, then that person is not entitled to inherit assets through their ex-spouse’s Last Will & Testament. However, one may inherit if their ex-spouse specifically named them in the Last Will after the divorce proceedings.

Any inheritance is a non-marital asset and therefore will not be divided in a Florida divorce. What is more, if a person sells that inherited asset and buys something new with the proceeds from said sale, the new purchase will remain a non-marital asset. However, the person is going to have to prove that the asset was inherited.

A proper estate plan can be used to address the protection and division of assets among the rest of family members, and even organizations or non-profits that one supports or is a member. A Pre-Nup (i.e., a Prenuptial Agreement or Marital Agreement) defines certain property rights while an estate plan is used to exercise those rights upon one’s death.

Marriage does not cancel a Last Will in Florida, but a spouse acquired after the execution of a Last Will may receive the same portion of the deceased spouse’s estate that he or she would have received had said deceased spouse died without a Last Will.

Simply put, an estate plan is a broader plan of action for one’s assets which may apply during one’s life as well as after their death. A Last Will, on the other hand, dictates where one’s assets will go after their death, who will be the guardian of their children and so on.

Under Florida law, death benefits payable under a life insurance policy are not subject to probate, if there is a beneficiary other than the deceased person and their estate. One must note that the amount paid out on a life insurance policy upon someone’s death is not technically owned by the policy holder.

Under Florida law, when a person adds the words “right of survivorship” to a joint tenancy, which means full title to the real estate goes to the owner that survives the death of the other(s). The “survivor” of the joint owners automatically owns 100% of the asset when the other joint owner (or owners) passes away.

A Personal Representative or executor cannot change beneficiaries’ inheritances or withhold their inheritances unless the Last Will has expressly granted them the authority to do so. The Personal Representative also cannot stray from the terms of the subject Last will or their fiduciary duty.

As for accounts or Life insurance with designated beneficiaries, one should change those beneficiaries while divorcing or after the said divorce or deal with them within the parameters of the subject divorce.

If both parties agree, it may be worth preparing a Pre-Nup or Post-Nup Agreement. Said agreements are legal documents that confirm the agreement that the couple comes to concerning their finances and protecting or dividing assets like pensions, property, savings, and investments as well as waiver of rights, etc. during a divorce or at the death of one of the parties. It is worthwhile considering such agreements.

Even if you receive an inheritance during your marriage, inheritances are considered separate property. Therefore, if you maintain the separate property status throughout the marriage, inheritances should not be subject to property division laws.

A nonmarital asset is an asset that one spouse has brought into the marriage, i.e., that was purchased prior to the marriage by one spouse. An example of nonmarital asset is real property, if one spouse owned a home that was purchased prior to the marriage, it is a nonmarital asset.

In Florida, a short marriage is one that lasts less than seven (7) years. If one spouse wants to pursue alimony, they should have been married for at least seven (7) years. The longer a couple is married, the more alimony someone can usually receive and the longer they can receive it.

In Florida, a spouse cannot be disinherited by a Last Will, and if there is no will, a spouse is entitled to a substantial part of the estate. The only exception to the above would be if a surviving spouse waived their rights through a Marital Agreement.

A Last Will provides clear instructions on the distribution of one’s assets after their death. A Pre-Nup is not enforceable for child custody and support issues. A Last Will can name a Guardian to protect any minor children and their inherited assets as well as a Declaration Naming Preneed Guardian for Minors.

When a married couple files for divorce in Florida, there will be an “equitable distribution” or the division of marital assets and liabilities pursuant to Florida divorce law 61.075, among others. Usually, the court will divide marital assets and liabilities 50/50 unless there are factors that would make an equal split inequitable.

In Florida, marital property is divided between couples during divorce, while separate property is not. If it is determined that a bank account is separate property, the other spouse will not have any right to the money.

Social Security is a federal benefit. Federal law preempts or trumps state dissolution of marriage (divorce) law, and federal law specifically provides that Social Security Retirement Benefits are not divisible in a divorce case per § 404.331(e), Code of Federal Regulations, etc.

If a person is going through a divorce and has children, they are still going to be a family. Divorce is not the end of the family. It is simply a restructuring of a family. As life changes over the years, one’s estate plan can change, modify, or evolve accordingly.

The foregoing is a very brief and general overview of the benefits of having a properly prepared estate plan, especially after a divorce 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.

Most consider estate planning for those approaching retirement age or older. However, young couples should contemplate doing an estate plan for different as well as many of the same reasons as their older counterparts. Only about a third of Florida resident as well as Americans with young children have a Last Will & Testament let alone other estate planning documents. To benefit from estate planning as a young couple, it is important to know what an estate plan can do.

Many newly married couples put off estate planning for assorted reasons. Those reasons may include being too young, being healthy, unable to afford it or because they have no children at the time. For some, it may even be depressing to imagine the possibility of dying or becoming incapacitated at such a youthful age. Even healthy young adults can be stricken by serious illness or accident and leave their spouse behind. Estate planning for young married couples at an early stage of their lives for the possibilities that may occur in the future is essentially the responsible, loving, and thoughtful thing to do.

Knowledge of what estate planning can do for a person and their spouse is vital in the long run. A basic estate plan typically includes a Last Will & Testament, Financial Durable Power of Attorney, Health Care Power of Attorney, Advance Directive or Living Will and a Preneed Declaration of Guardian for Minors. In addition, one of the primary goals of any estate plan is to minimize any taxes due at the time of death. People may wonder what will happen if they die without creating a Last Will. The response is that the Florida court will appoint a Personal Representative to make decisions regarding the division of assets. After final matters are paid for such items as debts, taxes and funeral expenses, the Personal Representative will divide the subject assets according to state law which does not always take into account the deceased party’s wishes or family dynamics. This impersonal but lawful route for one’s estate is precisely what most individuals, couples, and families aim to avoid when they do their estate planning.

Further, if one is not legally married but are in an otherwise committed relationship, planning is essential because one’s partner may otherwise have no legal standing to deal with the other’s affairs or receive any of their assets after death.

If one dies without a legal Last Will, the assets are distributed according to a plan established by state law, not by the individual. If one dies with only minor children as heirs, the child’s money is placed under the protection of a legal Guardian under a legal Guardianship and would require court supervision over the management of finances.

Fortunately, estate planning for a young couple is often simple and inexpensive. A basic Last Will with a testamentary Minor’s Trust therein, including Guardian or Trustee appointments, a Living Will, Health Care Surrogate and a Power of Attorney for financial affairs can address most of the needs which might reasonably arise in the following decade or so. This advanced planning provides security for one’s spouse and children, which they may need to rely upon for years, if not the rest of their lives. A Florida resident can use these documents to appoint Personal Representatives and/or Trustees to oversee resolving one’s estate and managing financial affairs of the subject estate. Moreover, said documents remove or reduce the likelihood of family disputes about the wishes or intentions of the deceased party.

Several legal roles should be considered for inclusion in the young couple’s planning documents, which include-Agents under the various Powers of Attorney as well as Guardians, Personal Representatives and Trustees. A Guardian is the person who is responsible for the custody and care of a minor child. If a child is left orphaned, the deceased parent would want them to receive care in the best possible hands. In addition to routine care, this person will have to make medical decisions, educational choices, religious guidance, and provide the proper nurturing for the child. With proper estate planning, one can make that choice while alive, based on the factors they find important, rather than a judge, who is a stranger, making these important decisions. By putting off planning due to fear, indecision, or failure to prioritize it, one may effectively decide to place their family in a precarious position.

One’s Personal Representative (PR) also serves an important rule, though for a much shorter time. The PR is responsible to wrap up one’s estate, collecting assets, paying debts, resolving taxes, and distributing property under the Last Will. It is a paperwork-intensive process requiring good organizational skills and an ability to solve problems. Someone located in the area where one resides is often a better choice than someone far away, due to the logistics of paperwork, court appearances, attorney consultations, bank visits and similar duties. This person will be responsible to see that what the deceased party owns goes to whom it should, so it should be someone who is responsible, diligent, intelligent, and trustworthy.

Finally, an individual or family may want to set up a Trust to protect assets which will pass to young children. A Trustee oversees financial assets left for a child, investing, and distributing them according to terms one has described in a Last Will or in a Trust document. This may involve managing assets for many years as the children grow and become responsible adults, during which time the Trustee will have to make many decisions about what is in the best interests of the child and their finances and care. A Trustee should be knowledgeable of financial dealings, have effective communication skills, and be very trustworthy.

The couple may also wish to discuss having a Living Will and/or medical Power of Attorney prepared. A Health Care and Living Will can describe whom one would like to make medical decisions about their care and treatment if they are left unable to do so themselves. Moreover, a person can describe their wishes about various types of medical treatment which they do, or do not, wish to receive if they are permanently unconscious or terminally ill and unable to communicate, such as blood transfusions, feeding tubes, and more, if the condition is one from which they will never recover. This avoids the types of family tragedies which transpired in the publicized cases of Karen Quinlan, Nancy Cruzan, or Terri Schiavo. Separately, a Durable Power of Attorney can be prepared which authorizes someone to act as an Agent on their behalf to manage financial and personal matters when the Principal may be unable to act on their own.

With early estate planning, a young couple can easily and inexpensively protect their family against many of the tragic unforeseen events which can spring up. The process of planning is relatively quick and painless and may be paid for by a Legal Plan that an employer may offer as a work benefit. Once in place, this plan will continue to protect those interests in a mature and responsible manner. Later as life changes over the years, one’s estate plan can change, modify, or evolve accordingly. As one may be aware, there was a reason one’s older parents had a proper estate plan prepared, therefore, it should be time for a young parent or a young couple to do so as well!

The foregoing is a very brief and general overview of the benefits of having a properly prepared estate plan even while young 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.

Unclaimed Funds are one of the many reasons for a proper estate plan and to advise one’s family or loved ones accordingly.

Unclaimed Funds go to the state (escheat) and may include money and securities, unclaimed property includes tangible property such as watches, jewelry, coins, currency, stamps, historical items, and other miscellaneous articles from abandoned safe deposit boxes. Escheat is the right of a government to take ownership of estate assets or unclaimed property in the event there are no heirs or beneficiaries. Escheat rights can also be granted when assets are unclaimed for a prolonged period. These situations can also be referred to as bona vacantia or simply unclaimed property. Financial institutions can hand over unclaimed property to their state, which includes bank accounts, assets, or any other property unclaimed for an extended period.

More than $58 billion dollars of assets have been escheated, or confiscated, by state governments in the US, and are just sitting in state funds, awaiting retrieval. There may be more which have yet to be recognized. The State of Florida, for example, currently holds an estimated $2 billion dollars’ worth of unclaimed money that can be claimed by legal owners at any time.

Florida and US residents forget about property and assets they may own. Additionally, people may not know that their loved ones have or had assets and, even if they were told, they may have forgotten them as well.

There are a number of free and paid groups which assist in finding money and assets which was lost or forgotten.

These assets are called “Unclaimed Property.”  A non-profit organization called NAUPA, the National Association of Unclaimed Property Administrators, is charged with helping oversee unclaimed property. NAUPA has members from every state in the US, including DC.  Its role is to set and foster the highest standards, professionalism, and best practices in raising awareness of, protecting, and returning unclaimed property to its rightful owners.

According to NAUPA, unclaimed property is defined as “accounts in financial institutions and companies, which have had no activity generated or contact with the owner for one year or a longer period.” Various states set different periods of time before escheating property. The state of Florida has a five-year holding period on most assets. Florida’s Chief Financial Officer, Jimmy Patronis, has said “…one in five Floridians has unclaimed property waiting for them.“  That is one of the bases for the CFO launching the “Florida Treasure Hunt” to spread the word and assist residents or their surviving families recover cash for which they may not even be aware. Last year, Florida paid out $349 million dollars in missing money.

Again, various forms of unclaimed property can consist of assets such as bank accounts, uncashed checks, money orders, gift certificates, stock and dividends or court funds, insurance policies and property from brokers/dealers, credit balances, payroll checks or bond interest, utility deposits, refunds, traveler’s checks, trust distributions, insurance refunds, annuities, certificates of deposit, bearer bonds, customer overpayments and contents of safe deposit boxes, among others.

Unclaimed property held by state governments does not include contents in storage units, which get sold if abandoned. It also does not include items that have been “hidden” in a home, like dollar bills inside books or under mattresses, or jewelry, gold bars, coins or other assets which have been hidden.

The most common reason abandoned property is turned over to the state and becomes unclaimed property is when a resident of that state:

• Moves without notifying every business contact;
• Forgets about accounts they may still have open; 
• Has checks that have been lost in the mail, uncashed or put in a drawer and forgotten; and
• Has no account information or process for notifying heirs upon his or her death. 

There is currently no statute of limitation on unclaimed property. One can claim and recover property that was escheated 50+ years ago and even unclaimed property of deceased relatives if one is a lawful heir. Further, depending on the state, it may include interest. However, Florida is not one of them.

Finding out if a loved one has unclaimed property is easier nowadays. People can check to see if they have any awaiting them, by going to NAUPA’s site, www.MissingMoney.com, or a free site sponsored by NAUPA, or to www.unclaimed.org.  The databases that house unclaimed property records are located and maintained by each state, not by the two stated sites.

Legitimate proof of one’s right to claim unclaimed property must be presented to make the claim.

To date, the largest unclaimed property recipient was a woman in Kansas City, Missouri, in 2011, for $6.1 million dollars, from a stock that her ancestors had invested in many years prior. The stock had been lost in passing it down from one generation to another.

HOWEVER, doing a proper estate plan and advising one’s family, loved ones, heirs and/or beneficiaries can go a long way in avoiding the foregoing from occurring.

The ability to know with certainty what will happen to one’s assets after they pass away is a primary benefit of creating an estate plan. When all goes as planned, a deceased party’s estate assets are distributed precisely as the terms of their Last Will & Testament and/or Trust and/or Lady Bird Deed, among other properly prepared documents, dictate. 

The foregoing is a very brief and general overview of the benefits of having a proper estate plan prepared and advising loved ones.

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.

Florida probate is a legal process that occurs when an individual passes as a resident in this state. The probate process validates a Last Will (if one exists) and functions to distribute the deceased party’s assets in the proper manner, either pursuant to the subject Last Will or by state law. The probate process can take approximately 6 months to a number of years and is dependent upon how complex the subject estate is or if the matter is contested. Throughout the probate proceeding, there are several processes, procedures, and deadlines that may feel complex and overwhelming. Often, it is at these points where one will determine if they need a Florida probate lawyer.

A probate attorney is a lawyer who focuses on estate planning and the probate process. They are experienced at working with the personal representative or executor as well as the deceased’s family members to get the estate through the probate process and assets distributed to the beneficiaries or heirs. 

After a loved one passes away, their assets, also referred to as their estate, must be distributed to beneficiaries or heirs, which include assets such as bank accounts, vehicles, jewelry, real estate, and personal property. Any asset which is owned by the deceased party must go through probate unless there is a named beneficiary (such as an insurance policy) or there are rights of survivorship (such as in real estate). 

A Last Will & Testament is a document which details who shall receive what property when someone passes away. The Last Will in Florida names a Personal Representative or in some states called an executor, which is the person who is responsible for distributing the decedent’s estate to the named beneficiaries. Upon the decedent’s passing, the Last Will is provided to a judge to be admitted to probate, which means that the court will review the said Last Will to confirm it is valid. Under Florida law, the Last Will must be signed by the individual writing the Will and be signed by two witnesses. Florida law does not require that the subject Last Will be notarized, but notarized Wills should be easier to admit to the probate court.

After the Last Will has been admitted, the administration of the subject estate will occur. Administration can be a lengthy process that involves taking an accounting of the decedent’s assets, providing proper notice to beneficiaries, managing any beneficiary disputes, and managing creditor claims, if any. An experienced probate attorney will be familiar with the administration process and can guide the surviving family through the necessary steps. When the administration has been completed, the probate judge will sign an order allowing all the property to be transferred or distributed, and the probate process can be concluded.

If an individual passes away without a Last Will or other estate plan, Florida law will govern how their estate is distributed. This process is commonly referred to as intestate succession. Generally, the individual’s assets will go to their surviving spouse, if any, and/or closest relatives (i.e., next of kin).

Even though there is no Last Will, the estate will still go through the probate process for the assets to be formally transferred or distributed to the intestate successors. 

The probate process is time-consuming, can be complex and comes at a time in one’s life when they should be focusing on grieving their loss. An experienced probate attorney can take the burden off the person and assist in making the probate process easier. The attorney’s knowledge of Florida law and the court system will help ensure that mistakes are not made that may delay the probate of the estate. 

One vital role an attorney plays is to help determine who is entitled to the estate and effectuate those applicable transfers or distributions. An attorney can assist the Personal Representative or executor and/or surviving family members in the following ways, among others:

Determining and paying any taxes due, such as estate taxes, income taxes, or inheritance taxes;

Identifying and creating an accounting of all estate assets;

Setting up and managing a checking account for the estate;

Paying any debts and final bills owed by the estate;

Ordering any appraisals which may be necessary (commonly occurring with real estate and jewelry);

Making final distributions and re-titling assets in the names of the beneficiaries or heirs; and/or

Most Last Wills are uncontested, but if any objections to the subject Last Will or the applicable distributions arise, which may lead to disputes, and, potentially, probate litigation.

The foregoing is a very brief and general overview of the benefits of having a Probate lawyer 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.