Probate is a court-supervised process for finding and gathering the assets of a deceased person, paying any debts, distributing the remaining assets to beneficiaries, and winding up his or her affairs.
If the decedent had a will, it must be deposited with the clerk of the circuit court within 10 days of death. However, the probate process doesn’t begin until a petition is filed, and the decedent’s will has no legal effect until it is admitted to probate by the court. Whether or not there was a will, probate is required to pass ownership of the decedent’s assets to the persons who are entitled to receive them.
A personal representative, known elsewhere as “executor,” is appointed by the judge to administer the decedent’s probate estate. Serving as personal representative is a responsible job, and mismanagement of the estate can result in personal liability to the beneficiaries. For this reason, it’s important to consult a probate attorney who can provide legal advice to the personal representative and represent him or her throughout the estate proceedings.
Contact McDannold Law to learn more about the probate process.
If you own a home in Florida, you’re probably familiar with the homestead tax exemption that can reduce its assessed value by up to $50,000. You may not realize, however, that Florida’s Constitution provides additional protections for homestead property, and it’s important to understand how these protections affect your estate planning. First, if the owner of the homestead property dies leaving a spouse or a minor child, the owner cannot give the property as a gift in his or her will. An exception allows the homestead to be gifted to the spouse, but only if the owner is not survived by a minor child. Second, the homestead property cannot be forcibly sold to pay the debts of the owner, and the protection from such debts descends to the heirs of the owner. This protection does not apply to mortgages or other liens attached to the homestead property itself. Contact McDannold Law for a free consultation to learn how these important laws may impact your estate plan.
In a recent Caring.com article, author Nick DiUlio reveals some troubling, though perhaps unsurprising, statistics regarding wills, trusts, and other estate planning documents: only 4 in 10 Americans have them. What’s worse, only 36 percent of parents with children under the age of 18 have an end-of-life plan.
The reasons for such dismal numbers seem to coalesce around age and affluence. Just 22 percent of Millennials have a will, and Generation X is only slightly better off at 36 percent. Baby Boomers, the oldest of whom are around 70 years of age, are the most prepared group with 60 percent having an estate plan. While I can (almost) give Millennials a pass on this – honestly, who plans for their own death at 20? – it’s harder to explain the older groups’ reluctance to plan for the inevitable. Many comprise the “sandwich generation,” a term that refers to people who find themselves caring for aging parents along with their own children. For such people, the circumstances of daily life would seem to highlight the necessity of planning ahead. Additionally, most Boomers have experienced, either firsthand or through a friend or family member, a wide range of end-of-life issues – retirement, declining health, waning capacity, and so on. This makes it difficult to understand why 40 percent of Baby Boomers – the generation statistically nearest to the end of life – are wholly unprepared for it.
What makes more sense is that people who have more assets tend to be more prepared. Of those persons without a will, 29 percent said it was because “they don’t have enough assets to leave to anyone,” evincing a misconception that estate planning documents are only for people with substantial wealth. Of course, those people should make plans for distributing their assets at death – sometimes considerable tax consequences result from not doing so – but the reality is that everyone should have a will. Why?
Because it’s not about you.
First, no matter how few assets a person may have, or how meager they may be, those things will mean something to someone after that person is gone. An inexpensive wristwatch, for example, can seem priceless to a child after her father dies, because the knowledge that daddy wore it every day keeps her heart connected to his memory. I have a fountain pen in my drawer that belonged to my uncle, one of several he collected during his life. By any measure, it’s a lousy pen – it’s heavy, the nib doesn’t write smoothly, and every so often it leaks on my clothes. But I wouldn’t trade that pen for the world, simply because it once belonged to my uncle. Having a will does more than just distribute stuff; it connects people to the memory of those who have passed on.
Second, and maybe more importantly, even people with very few assets leave behind grieving friends and family members. Coming to terms with the loss of a loved one is emotionally overwhelming, and the last thing most relatives want to deal with is choosing whether Frank or Bob should get grandpa’s flat screen TV. By deciding in advance which assets should go to which beneficiary, a person can shield family members from the burden of making those choices at such a challenging time. In this regard, a will or trust gives the distraught family a calm reassurance that things will be done exactly as their loved one wanted. It sounds cliché, but planning ahead really does show others how much you care.
Are you ready for tomorrow?
When you visit the office, one of the first things you'll see is a large grandfather clock in the reception area. It's not particularly valuable, but to me the clock is priceless because it belonged to my grandmother. I remember, on the day it was delivered, how excited Granny was to finally have her clock. She'd apparently had her eye on it for a long time, but it took Gramps a while to save up the money to buy it. For them, that clock was a big purchase, and it was very special.
I was probably around 12 years old when the stately clock came to their little home. In all the years that followed, it never moved. It stood firm against the wall like a ticking sentinel, quietly watching as our family grew, and changed, and came, and went. And died. First, Granny, and then, almost four years later, Gramps. The house, my part-time childhood home, once filled with so much laughter and love, became lifeless. Empty. But Granny's clock kept on ticking.
When the time came to distribute my grandparents' assets, it wasn't at all clear who should get the clock. Gramps' will didn't contain a provision devising specific items of tangible personal property, so items like Granny's clock fell into the residuary estate - sort of like a big bucket that holds all the assets not given to specific beneficiaries. Gramps always said he wanted to "be fair" and "let the kids pick what they want," but such a passive approach is actually a recipe for disaster. Allowing beneficiaries to choose the assets they receive is inherently unfair because someone has to choose first, and subsequent beneficiaries might have wanted items previously selected by others. Also, complete fairness would suggest that the residuary estate be liquidated and the proceeds divided equally between the beneficiaries. Thus, Granny's clock would be forever lost in the interest of being "fair."
A much better alternative, one that eliminates confusion and minimizes animosity among the beneficiaries, is to create a document - separate from, but associated with, your will - that names specific people to receive individual items of your personal property. It's not complicated, but a Florida attorney should help you navigate the picky rules that might invalidate the document. If you're interested in learning more, give me a call.
I keep Granny's beloved clock in the office for a number of reasons. First, its very presence is a testament to deliberate estate planning, because a good plan is the only way to ensure that treasured heirlooms are passed on to family members as intended. Second, because the clock is connected to my grandparents, it's an ever-present reminder of why I chose to practice elder law in the first place. Finally, maybe most importantly, the ticking of Granny's clock marks the passage of time. A sobering but inescapable fact is that all of us will die someday, and many of us will grow old before doing so. Wisdom dictates that, in either case, we should be ready for whatever may come.
Are you ready for tomorrow?