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Miami Estate Planning Law Blog

Determining your taxable estate

Many people often come to us here at The Law Offices of Frye and Vazquez, P.L. concerned that much of what they have to leave to their spouses, children, and/or grandchildren will be taken through estate taxes. If you share this same concern, you should know one thing: most estates in the U.S. will not be subject to an estate tax. That is because their total values do not exceed the estate tax threshold set by the federal government. Whether or not yours will depends on the value of your taxable estate.

The Internal Revenue Service has listed the process through which your taxable estate is determined on its website. This allows you to know beforehand whether or not you need even concern yourself with having to learn more about the estate tax. It all starts by determining your Gross Estate. This includes all of the following property:

  •          Cash and securities
  •          Real estate holdings
  •          Insurance policies
  •          Business interests
  •          Trust and annuity income

Outlining the process of revoking a will

Whenever you hear news of an estate dispute in Miami, oftentimes the central issue in such cases is the validity of one will over another. We here at The Law Offices of Frye and Vazquez, P.L. can attest to the fact that such disputes can often be avoided by you being as transparent as possible during the estate planning process. Say that you have followed the advice of estate planning experts and created a will early on in your adult life. Changes in your relationship status, career, or even your political and social leanings may prompt you to create a new one later on. How can you ensure that your beneficiaries understand that your subsequent will reflects your true wishes?

According to the Florida Probate Code, a subsequent will that expressly revokes all of the terms of an initial one is sufficient to prove revocation. So too is a subsequent will that does not expressly revoke the earlier will, but whose language is inconsistent with the earlier will’s terms. However, the extent to which the second will revokes the terms of the first in such a case is limited to those areas where there are inconsistencies.

How does summary administration work?

You may hear from several people in Miami that one of the main reasons why you should not put off your estate planning is to avoid probate. Probate avoidance strategies have been detailed in previous posts on this blog, yet one question you may want to first ask is whether or not an estate that you are party to even needs to be probated. If you have been named as the executor of an estate, you will especially want to know this before becoming consumed with worry about having to go through probate.

If the value of your loved one’s estate is less than $75,000, or he or she has been deceased for more than two years, then his or her estate may be eligible to be dispersed through summary administration. According to the Florida Probate Code, you can initiate this process yourself as the personal representative of an estate, or if you are a beneficiary to it. First, however, you must make a diligent effort to contact all of your loved one’s creditors and ensure that their claims are settled using the estate’s assets.

Religious differences set parents and guardian at odds

Many in Miami likely dread the prospect of not being able to make decisions for themselves. If and when they find themselves (or someone that they love) in such a circumstance, they may hope that another family member or friend will be given the right to make important decisions for them. Such choices can involve financial, medical, personal and even spiritual matters. Knowing this, it may be easy to see why one would only want someone that he or she trusts placed in the role of his or her decision maker. However, in some cases, the court may find it best to appoint guardian outside of one’s circle of family and friends.

Oftentimes, the views and opinions of a court-appointed guardian may clash with those of his or her ward (or the ward’s family). Such appears to be the case in a lawsuit recently filed by a family in Ohio. They claim that the court-appointed guardian of their 11-year-old son repeatedly tried to force her religious beliefs on them. She eventually lined the boy up with a mentor from her church congregation. According to the lawsuit, despite the mentor agreeing not to proselytize to the boy, he did so anyway away from the parents. The parents’ frustrations boiled over after the boy was forced to be baptized during a religious activity. He claims that his mentor threatened not to continue to take him to activities if he did not comply.

Do I need a generation-skipping trust?

Even if you are one of the many Florida residents who already has a pretty firm estate plan in place, you may find now a good time to review that plan. As life changes, so too might your estate plan. One of the tools you might want to consider is a generation-skipping trust.

As The Motley Fool explains, a generation-skipping trust may commonly be used by people with high-asset value estates. As its name implies, a GST helps you leave assets for grandchildren or subsequent generations. There are sometimes unique situations when grandchildren may not be considered a skipped generation such as if their parents have already died and the grandchildren would then be considered the first in line as heirs.

Examining the exemption to the prudent investor rule

In the past, this blog has detailed the prudent investor rule as it applies to trustees in Miami. Simply put, it requires that trustees invest trust assets with the right amount of research and judgment one would expect from a reasonable, prudent person. This seemingly puts a lot of pressure on trustees for their investment vehicles to perform well. However, there is one major area of trust management that is exempt from this rule: life insurance.

Information shared by the National Association of Insurance Commissioners shows that in 2015, over $45.3 billion was written in life, accident and health (separate from standard health coverage) premiums in Florida alone. These numbers seem to reveal the importance that people place on having an insurance policy to help cover any expenses associated with their deaths or incapacitation.

Filing an estate tax return extension

As the executor for the estate of a family member or friend in Miami, the one area that may cause you the most trepidation is dealing with the having to pay estate taxes. Those who come to us here at The Law Offices of Frye and Vazquez, P.L. with their tax questions typically want to know two things: First, if their loved one’s estate is even required to pay taxes. If it is, then they typically want to know how long they have to pay them. If a looming estate tax return filing deadline is approaching, you may want to consider asking for an extension in order to have the time needed to collect information to do an accurate tax assessment.

As has been detailed in this blog before, you can indeed ask the Internal Revenue Service for an estate tax extension. According to the IRS website, this must be done within nine months of your loved one’s passing. Submitting an IRS Form 4768 prior to the April 15 tax deadline automatically earns you a six-month extension. Yet what if you have yet to be able to accurately identify all of your family member or friend’s estate assets, and thus have yet to determine if his or her estate meets the federal tax threshold? If you do not anticipate having all of information needed to complete a return within the six-month time period allowed by an extension, you can request to be given additional time.

Senator’s sons and widow square off over validity of his will

Miami residents are encouraged to begin their estate planning early on in their adult lives, and to involve those who may be beneficiaries of their estates in the process, as well. This attempt at transparency may hopefully help to avoid having disputes arise once one is gone. However, as family dynamics change over time, so too can one’s estate plans, much to the chagrin of those who may be negatively impacted by such changes. In such cases, no amount of planning may be able to avoid the legal battles that may arise if and when disillusioned beneficiaries try to claim what they may believe to be theirs.

The sons of a former U.S. Senator from Tennessee are currently involved in a bitter dispute with their father’s widow, claiming that she exercised undue influence over him in order to amend his will shortly before his death in late 2015. His final will named her as the primary beneficiary, with his two sons each receiving $50,000. However, the sons claim that they have evidence from the law firm that handled their father’s will stating the man did not have the needed mental capacity to comprehend the changes made to his will. They are now requesting access to the documentation detailing their father’s estate planning process as well as verification of his assets.

What is a temporary emergency guardianship?

Few in Miami may seriously contemplate the possibility that they could end up in an incapacitated state where they may be unable to make decisions for themselves. This may be the reason why so many may fail to specifically name someone to act in their place should something like that happen. Yet unanticipated events could leave one of your friends or family members needing such representation almost at a moment’s notice. In such an event, you could petition to be named as his or her emergency temporary guardian.

What is a emergency temporary guardianship? According to the Florida state statutes, such authority can be bestowed if a petition for determination of capacity has been commenced for your loved one, yet a permanent guardian has yet to be named. In order for such authority to be granted, the court must first determine that the physical or mental health of your friend or family member is in imminent danger. It may also be bestowed if it is believed that your loved one’s condition places his or her property at risk of being:

  •          Lost
  •          Wasted
  •          Misappropriated

Detailing the probate process in Florida

Many in Miami have likely heard from countless people that they should do what they can to avoid having their estates go to probate. This is due to the fact that the probate process can be time-consuming (sometimes lasting longer than one year), and any expenses associated with it are drawn directly from estate assets. However, many estate cases are still heard in probate courses every year, and for those unfamiliar with the legal guidelines regarding estate administration, the assistance offered by the probate court may end up justifying the expense.

The Florida Bar Association describes the purpose of the probate process as being three-fold:

  • Identifying and gathering all of a decedent’s assets.
  • Paying any debts he or she may have incurred.
  • Distributing assets to his or her beneficiaries.
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