For a multitude of reasons, Florida residents may want some or all their assets to pass directly to specific individuals upon their deaths, outside of the probate process. One way to carry this out is to list a designation of beneficiary or set up an “in trust for” (ITF) or “payable on death” (POD) account for money in a bank account, IRA. 401(k), etc., or a “transfer on death” (TOD) account if funds are in a brokerage account.

Probate is the process by which a Florida court determines how to distribute property or assets after an individual’s death. Some assets are distributed to heirs by the court (probate assets) and some assets bypass the court process and go directly to beneficiaries (non-probate assets). With ITF, POD, TOD and/or designated beneficiary on accounts, the account owner names a beneficiary (or beneficiaries) to whom the account assets are to pass or be distributed when the owner dies. Usually, all that is required to get the money or control of the account is for the beneficiary to show a bank officer or the brokerage firm an original death certificate of the owner as well as various requested forms of identification for the beneficiary and possibly a claim form. The funds pass outside of probate, meaning that the beneficiaries can receive the money quickly without the involvement of the county Florida Probate Court. The account assets also receive a “step-up” in basis when the original owner passes away, meaning that the beneficiary gets the value as of the owner’s date of death for capital gains tax purposes.  However, one should never hesitate to consult their accountant, CPA, or Tax advisor to confirm it.

During the account holder or owner’s lifetime only the account owner has access to the assets.  The named beneficiaries have no control over the subject account, and the owner can change beneficiaries at any time, if competent to do so. If the named beneficiary predeceases the account owner, then the assets are distributed to the remaining beneficiaries or to successor, contingent or alternate beneficiaries, depending on what the owner names or lists on the beneficiary designation form or online. If there is only one beneficiary and that beneficiary predeceases the said owner, and the owner makes no subsequent changes to the beneficiary designation, the assets go into the account owner’s probate estate and will be administered via the probate process in court.

Ultimately, receiving assets could become a problem for certain beneficiaries, such as a child with special needs who depends on Medicaid and/or receives other public or governmental benefits. If the account amount is sufficiently large that could jeopardize the beneficiary’s eligibility for needed governmental benefits, then, it would be advisable to do special needs planning, such as naming a Special Needs Trust as the beneficiary to avoid the subject assets interfering with the receipt of governmental benefits.

Further, another issue with passing assets through accounts like these is that individuals sometimes forget about the accounts, and their existence can confuse an individual’s estate plan. For example, the Last Will & Testament may show that everything should be distributed equally to the account owner’s four children, but the said account passes assets to only one child, creating unequal shares among the children. Therefore, planning the estate should take all these aspects into consideration so they accomplish the overall desired result. 

If avoiding probate is the goal, a Lady Bird deed can be used for Real property (especially the primary residence), or one may put assets into a revocable trust that clearly expresses by its terms who should get what.  However, these potential problems are much less of an issue if the estate is a basic or simple one, i.e., where there is one surviving parent with only one child as the beneficiary.

The foregoing is a brief and general overview of what the concept is regarding designation of beneficiaries in the state of 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.

Elder Law is a large umbrella encompassing many aspects of life and can be defined as any legal issue involving health and personal care planning for senior citizens and their caregivers.

This area of practice encompasses all aspects of planning for aging, illness, and incapacity, including advance directives; lifetime planning; family issues; fiduciary representation; capacity issues (i.e., Alzheimer’s and Dementia, Parkinson’s); guardianship and guardianship advocates (for minors, adults, and people with developmental disabilities); powers of attorney (medical and financial); financial planning; public benefits (Medicaid and Veteran’s Benefits) and health insurance (such as Medicare); resident rights in long-term care facilities; housing opportunities and financing; employment and retirement matters; income, estate, and gift tax matters; estate planning (Last Wills and Trusts); probate; nursing home claims; elder abuse; age or disability discrimination and grandparents’ rights, depending on the state.  Another part of elder law may include disability planning. This area includes the planning of monetary gifting to a disabled family member or loved one (particularly those diagnosed with developmental disabilities such as autism, down syndrome, cerebral palsy, etc.) while still protecting public benefits such as Medicaid and SSI, through the creation of a Special Needs Trust.

This area of law can also include the civil and criminal defense of individuals who are civilly sued or criminally charged with violations of their positions regarding their duties towards the elderly in their family or custody and/or care.

In Florida, elder law clients are primarily senior citizens and their caregivers (familial or professional), or the family of individuals diagnosed with developmental disabilities; the specialization requires a practitioner experienced in the legal issues affecting these clients.

Mistreatmentof the elderlyis a recognized concern and will undoubtedly increase over the next several decades. With the population aging and people living longer, elder abuse is increasingly prevalent.

​Elder abuse, or financial exploitation, is also known as financial abuse.  This abuse occurs when someone misuses or takes money from a vulnerable elderly person.

Financial abuse can include the misuse of powers of attorney and guardianship, illegal transfers of property, and outright fraud and theft. Financial exploitation can also occur after a person’s death, through the mishandling of a deceased party’s estate and distribution of property.

In order to detect the ongoing situation, one can look for certain signs, and if one observes an elderly person who appears to be affected by any of the following situations, then some proactive measures should be taken. Signs can include when the senior becomes isolated from friends and/or family; seems afraid to speak in front of caregiver/companion/family member; is receiving care well below the level they can afford; is unable to spend money the way they want; seems as if they are being forced to sell or give away property, sign over Power of Attorney, or change title of property to someone else; sudden changes in their financial situation or their bank account shows unusual activity; and/or sudden changes in their beneficiaries in their Last Will or Trust.

Financial abuse against seniors is particularly difficult to detect since they are often unreported by victims. In many cases, it is up to family and friends to discover the wrongdoing and file a complaint. Concerned friends, neighbors, and family members can help prevent financial abuse of the elderly by checking in with the person from time to time as many vulnerable victims are isolated from others. A few preventative measures might include occasionally arriving at the elderly person’s home without calling, asking questions when circumstances do not appear quite right, and listening and observing carefully for any potential problems.

If a Florida resident believes that an elderly person may be a victim of financial fraud, or any other type of abuse, then should act promptly. Time is of the essence and the proper course of action will depend on the urgency of the situation. If the situation involves physical danger, it is best to call 911, or get the local police involved. In Florida, one can also contact the local Adult Protective Services through the Dept. of Children & Families (DCF) who can investigate the situation.   

​If an individual suspects that a family member or loved one is no longer capable of making good financial decisions on their own, they can initiate guardianship or conservatorship proceedings.
  

To Report Elder Abuse, Neglect, and Exploitation, the same can be reported by phone – call Florida Abuse Hotline at 1-800-96-ABUSE (1-800-962-2873), then press two (2) to report suspected abuse, neglect, or exploitation of a vulnerable adult. This toll-free number is available around-the-clock.

Pursuant to Florida statute Chapter 415- Adult Protective Services terms are defined: (1) “Abuse” means any willful act or threatened act by a relative, caregiver, or household member which causes or is likely to cause significant impairment to a vulnerable adult’s physical, mental, or emotional health.

To demonstrate there was a breach by the fiduciary or someone else, one or more of the following must be proven:

1. Extensive withdrawal from monetary accounts.
2. Increased or changed spending habits.
3. Someone added to the senior’s financial accounts.
4. Unpaid health care costs or no health care.
5. Changes in the senior’s estate.
6. Changes in the senior’s personality.
7. Payments or gifts that seem excessive.

Financial abuse of the elderly includes an array of behaviors from the theft of property to “borrowing” property from an elderly individual with the intention of keeping it because of the individual’s poor memory or lack of will or ability to retrieve it. It also occurs if someone uses undue coercion or influence to convince an elderly person to change their Last Will or convey property. 

There are many people who can commit financial elder abuse, including friends, family members, and even service providers, such as nursing home employees, caretakers, attorneys, and accountants. Even strangers may befriend an elderly person to try and gain access to their property. 

In the state of Florida, anyone who is in a position of confidence or trust in an elderly person is expected to put the elderly person’s needs first and not to use or obtain the assets belonging to the elderly for their own or someone else’s purposes. The potential legal consequences of violating the elder exploitation laws in Florida are severe and may include attorney’s fees, triple damages, and punitive damages. 

The crime of Exploitation of an Elderly Person or Disabled Adult of $10,000 to $50,000 is a Second-Degree Felony in Florida and punishable by up to fifteen years in prison, fifteen years of probation, and a $10,000 fine.

The types of elder abuse include:  Neglect, Physical abuse, Sexual abuse, Abandonment, Emotional or psychological abuse, Financial abuse, and/or Self-neglect.

When a caregiver or other person uses enough force to cause unnecessary pain or injury, even if the reason is to assist the older person, the behavior can be considered abusive. Physical abuse also encompasses behaviors such as hitting, beating, pushing, shoving, kicking, pinching, burning, or biting.

Florida Statute section 415.1111 gives “vulnerable adults” a civil cause of action for damages, punitive damages and attorney fees and costs when they have been financially exploited. There are also criminal penalties that can be pursued by the State of Florida through their local States Attorney’s office.

The Department of Justice describes the term “exploitation” as referring to the act or process of taking advantage of an elderly person by another person or caregiver whether for monetary, personal, or other benefit, gain or profit. Undue influence is the misuse of one’s role and power to exploit the trust, dependence, and fear of another to deceptively gain control over that person’s decision in a particular matter. Along with capacity and consent, undue influence is a key concept in elder law.  Federal agencies such as the Departments of Justice (DOJ) and Health and Human Services (HHS) are also involved in protecting people from such abuse.

Under Florida Statute 775.15(10), the statute of limitations requires that the prosecution is commenced within five (5) years after an offense is committed in violation of the following:

• Section 825.102 prohibits the abuse or neglect of the elderly or disabled; or
• Section 825.103 prohibits the exploitation of the elderly.

On March 22, 2020, Attorney General Ashley Moody announced the creation of Florida’s Senior Protection Team. The intra-agency group of experts works in tandem to fight fraud committed against the elderly. Florida’s Senior Protection Team is comprised of members from: the Attorney General’s Office of Statewide Prosecution, Consumer Protection Division, Medicaid Fraud Control Unit and Office of Citizen Services.

The Florida Department of Law Enforcement also helps Florida’s Senior Protection Team with investigations into civil, criminal, and healthcare fraud committed against Floridians who are sixty (60) years of age and older.

Although Florida’s Senior Protection Team deals with elder exploitation issues, those issues are typically handled within the jurisdiction and expertise of local law enforcement or other state agencies, like the Florida Department of Children and Families, the Florida Department of Elder Affairs, and/or the Department of Financial Services.

Even physicians, nurses, and other health care providers can be accused of exploitation of a disabled adult or elderly person. The Florida Attorney General’s Medicaid Fraud Control Unit oversees many of these investigations. Related charges can include being engaged in a scheme to defraud.

The foregoing is a brief and general overview of what is considered Elder law and Elder abuse in the state of 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.

In general, Estate Planning involves making a written plan in advance for whom a person wishes to receive one’s assets after death and naming who they wish to make decisions for them if they become incapacitated.

1. It provides instructions for what to do with one’s assets and property after they have passed away.
2. It provides instructions for a person’s care and how to manage their finances if they become incapacitated.
3. It identifies a Guardian or Custodian and a Trustee to manage one’s minor children and/or their inherited assets.
4. It helps prevent disputes among beneficiaries and/or surviving family members.
5. It can provide for family members with special needs without disqualifying them from government benefits.
6. It can include life insurance to provide for one’s family at their death; disability income insurance to replace income if one cannot work due to illness or injury; and long-term care insurance to provide assistance in case of an extended illness or injury.
7. It enables the transfer of a party’s business from their retirement, disability, or death.
8. It takes care of loved ones who may be irresponsible with money or who may need to be protected from creditors or ex-spouses.
9. It can reduce taxes, court costs, and unnecessary legal fees.
10. It can be altered and updated as one’s family and financial circumstances, and relevant laws, evolve or change over their lifetime.

The foregoing is a very brief and general overview of the assorted reasons to consider when preparing an estate plan for Florida residents.

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 law does not provide unmarried couples with the inheritance protections and automatic decision-making authority it provides to married couples.  Unmarried couples have virtually no rights under Florida statute. Consequently, many of those rights can be created with proper estate planning documents.  Unmarried couples, in particular, must take practical steps to plan for the future.  Unmarried couples should make estate planning a priority.

Estate planning in Florida is essential to guarantee the estate distributes property and assets according to the deceased person’s wishes. If a person should pass away without executing a Last Will & Testament, or Trust, his or her property will be distributed in accordance with Florida’s Intestacy law. Essentially, a married couple is treated as a single entity under the law. Domestic partners and others in non-traditional relationships do not count as heirs under Florida probate law.  Therefore, unmarried partners do not have access to these same protections. Florida does not recognize common law marriage, so even long-time partners could be cut off from interests in their partners’ property after their deaths.  Unmarried couples can also consider holding certain assets, such as real estate or bank accounts, in joint ownership with rights of survivorship.

It is estimated that the number of cohabiting unmarried couples or partners has increased by 88% between 1990 and 2007, and the committed unmarried couple is the fastest growing segment of the relationship population in the United States. This trend is expected to continue, as modern society struggles to find continuing long-term value in marriage, which is the principal legal fiction used to extend a legal relationship, which began by blood only but was expanded to adoption, to people who were not otherwise related by blood or adoption, i.e., by legal marriage, for purposes of the laws of descent and distribution.

While working with unmarried partners on the personal or human side of estate planning is not too dissimilar from working with married partners on their estate planning, current law treats these two groups, i.e., married v. unmarried, entirely differently on the legal side of estate planning. Again, the two principal differences are the laws of descent and distribution, both testate and intestate (the default rule for people who die without a valid Last Will & Testament which transfers their entire estates) and the laws of marriage, which imbues a married surviving spouse with preferred rights in a whole panoply of areas, including property and estate administration rights and responsibilities, as well as in personal care and taxation.

On the one hand, the lack of current applicability of the legal default rules of legal relationship (unmarried and otherwise unrelated people are strangers in the law) and descent and distribution give estate planners a tabula rasa, but there is no default rule safety net. For this reason, many experts in the field call estate planning for unmarried couples “the wild, wild west of estate planning.”

Estate planning must now focus on the unique problems and issues that unmarried couples and their estate planners face.  There are now numerous factors to consider such as:

• The legal atmosphere for an unmarried couple is different than for married couples-in the world of married couples, the legal institution of marriage eventually came with its preferential rights for surviving spouses by way of the laws of descent and distribution, in which the surviving spouse enjoys in virtually every set of intestacy laws throughout the nation. The legal atmosphere of unmarried partners is without these very effective default rules.
• Why unmarried couples’ estate planning needs to be done in an expedited way, discussing the risks attendant to no protection against the HIPAA privacy protection.
• Legal Status-putative or common law spouses-what about agreements or negating post-death attempts to claim status as a common law or putative spouse, or palimony.
• Property Agreements-Attorneys, and their clients should discuss the structure of a property agreement between unmarried partners and creative use of entities.
• Differences in the income and transfer tax treatment between married and unmarried couples.
• Domicile and Governing Law-This can become particularly acute if the couple lives part-time with each other or separately and part-time together in different jurisdictions.
• Life and Health Insurance; Other Benefits-should be discussed as well as the challenges in this area, including County Domestic Partner forms-for Insurance purposes and employment benefits, etc. and Domestic Partnership Agreements.
• At the Outer Edge-Adult Adoption; visitation agreements, etc.

The foregoing is a brief and very general overview of the various initial steps to consider when preparing an estate plan for an unmarried but committed couple in Florida, whether part-time or full-time residents.

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.

Think of an estate plan as a security blanket for a Florida resident’s possessions as well as for family or loved ones. What happens when a person becomes seriously ill?   Upon death, how much of one’s estate is distributed among their family or loved ones? All questions can be answered in a carefully crafted estate plan.

All factors considered should focus on creating an effective plan. The most difficult challenge is setting up terms and knowing where to start. Fortunately, with professional guidance from an experienced attorney, the more beneficial an estate plan will be.

Planning for the future does not have to be a daunting task. The estate planning process can be broken down into steps, geared towards proper asset-planning in a simple manner. Once an individual decides to meet with an estate planning attorney, it will be that much easier in completing the plan and moving forward.

To get a head-start on planning, a person can follow these seven (7) practical and straight forward steps:

First, narrow down what belongs to the party. An estate is important and the more one owns, the more meticulous the plan should be.

Second, once everything one owns is identified and itemized, list who gets what. Beneficiaries can either be family members, loved ones, cherished organizations or close friends. A Last Will & Testament also states, lists, or names who will take custody or guardianship of one’s minor children, if applicable. A Declaration of Preneed Guardian for Minors can be used for this purpose as well.  Be sure to update the Last Will after significant life events, like marriage, divorce, birth or death of a child, or retirement and the like.

Third, avoiding the arduous process of probate, or trust administration, can be the goal of forming a trust, designating beneficiaries on accounts, or preparing a Lady Bird Deed for real property in Florida, particularly for a homestead primary residence. Upon an unexpected illness or death, the trust, designated beneficiaries, or Lady Bird Deed guarantees the estate will be handled correctly according to the stated terms.

Fourth, healthcare programs are meant for financing assisted living and nursing homes, depending on whenever one might require special housing or medical facility arrangements. Whenever the situation arises, a person will be glad they have a healthcare plan in place.

Fifth, especially if an individual and/or couple have young children and/or own a house, purchasing a life insurance policy financially benefits those left behind after death.

Sixth, with all the proper paperwork kept in one specific place helps the maker of the same to stay organized and easier for those who follow.

Seventh, an experienced estate plan attorney can guide the individual every step of the way. The attorney can educate clients and aid in fine-tuning the subject estate plan while maximizing its benefits for the creator of the said plan and their loved ones or beneficiaries.

The foregoing is a brief and general overview of the various steps to consider when preparing an estate plan 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.

Those Florida families with large support systems and close, loving relationships with friends and family already know they have a built-in system. They can raise their children in an environment where they can feel fully supported. However, even in situations where one believes their children will be safe and well cared for if they can no longer care for those minor children, should not leave it up to family or the court system to determine guardianship in their absence. It may lead to legal complications and disputes that could ultimately cause harm to said minor children. Learning about the impact planned guardianship can have will benefit an estate plan and potentially one’s minor children.

If and when a minor child’s parents pass away or are otherwise unable to care for them, the court will determine who will make decisions on behalf of the minor child, unless there is a named Guardian within the estate. The judge will do the best they can to make this determination in the best interest of the said minor child, but the reality is that they do not personally know the subject children nor their particular family dynamics.

In some cases, one may not have a good relationship with a family member, but after their passing, if the said relative petitions for guardianship of the deceased party’s child, it is possible that the judge will select them for as a legal guardian. They could have complete control over that individual’s child’s inheritance, well-being, and the values with which they will be raised. On the other hand, said party may be expecting someone close to them will be able to step in and become a Guardian. However, in that moment, that particular person may not be prepared or willing. 

Naming a Guardian in a Trust or a Last Will or Declaration of Preneed Guardian for Minor Children can eliminate any ambiguity about one’s desires or wishes. With a named Guardian, the minor children will be cared for by someone the deceased parent approves of, and it will be more difficult for anyone to dispute their guardianship rights if said parent becomes incapacitated or passes away. Incorporating these estate planning tools can protect one’s child’s inheritance or give the Guardian the financial means to raise the child.

Choosing someone to be a Guardian is not an easy task. If possible, it should be someone who is close to the parents and their children. They should understand and respect the personal values and beliefs of the said parent and be willing to impart them to the subject minor children. A potential Guardian should also be fiscally responsible. Anyone who is expected to raise a child should have the financial means to do so. If tasked with managing the child’s inheritance, they should be capable of using it for the best interest of the child and not for personal gain.

Although one’s children may not need to be directly involved with the estate planning process, generally, it may be important to consider their wishes when it comes to guardianship. It should be a collaborative process between the parents, their children, and their prospective Guardians. The most important characteristic of a Guardian is that they care about the subject minor children and are willing to care for their needs in the said parent’s stead. 

The process of selecting and incorporating a Guardian for one’s children within their estate plan may be a bit challenging, but the benefits are well worth it. The parent who may become incapacitated or pass away can have peace of mind knowing that their minor children will be safe and well cared for and that their inheritance will be protected.

On can name a Guardian in a Last Will & Testament and use a testamentary Minor’s Trust for receipt of assets, a Living Trust and/or Preneed Guardian Declaration or Designation.

The foregoing may not be an easy subject for parents to consider and contemplate, but it is a possibility. Without comprehensive estate planning, one could leave their minor children and dependents vulnerable. However, with the proper estate planning tools, a Florida resident can rest assured that their loved ones are appropriately cared for and their future secure.

The foregoing is a brief and general overview of advanced naming of a Guardian for Minor Children 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.

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.