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Miami Estate Planning Law Blog

Can you ask the court to monitor a guardian’s actions?

It is always difficult to see your loved one assigned to be the ward of a professional guardian in Miami. Yours and your loved one’s lack of a personal relationship with the guardian is likely the main source of your reservations. Stories of professional guardians abusing the authority entrusted to them are out there, which may be perceived as an implication that they can operate with impunity. Yet are there ways for you to monitor a guardian’s actions?

The answer to that question can be found in Section 744.107 of the Florida Guardianship Law. Here, it details the appointment of court monitors. The law specifically states that you can petition the court to have a monitor assigned to investigate your loved one’s guardianship case. Be aware, however, that if it is determined that you filed your petition in bad faith, the court can require you to cover the entire cost of the proceedings, as well as any associated attorney’s fees.

Estate tax implications for small businesses

Your entrepreneurial pursuits in Miami have hopefully yielded a significant windfall for you and your family, and provided people in the local community with jobs. Yet what happens to your business after you are gone? If you have earned significant personal assets, your estate could be subject to the federal estate tax. Many small business owners in your same position come to us here at The Law Offices of Frye and Vazquez, P.L. concerned that their having to pay the estate tax will force the sale of their companies. Should you be sharing this same concern?

According to the Center on Budget and Policy Priorities, the answer that question is no. It recently shared information that showed that of the 5,200 estates that owe taxes in 2017, only 50 of those are small businesses or farms. That is because the total taxable estates of their owners does not exceed the estate tax threshold ($5.49 million for 2017). If this is the case with your company, you can simply transfer ownership to your beneficiaries without having to worry about a stiff tax penalty.

Trusts and the age of beneficiaries

When it comes to trusts, there are various issues that those creating an estate plan may have to take into consideration, such as how their assets will be distributed and which trust is the best option. At the Law Offices of Frye & Vazquez, we are also aware that some trustors in Miami, as well as beneficiaries, may struggle with issues related to the age of beneficiaries.

Whether you have been named a beneficiary but are not eligible to receive inheritance until you reach a certain age or you are setting up a trust and do not know when some of your beneficiaries should receive assets, it is vital to go over age-related matters appropriately. For trustors, it is crucial to take different factors into consideration and make sure that beneficiaries receive inheritance at an ideal age. Sometimes, trustors decide that the age of 18 is too young and they may have beneficiaries wait until the age of 25 to receive any funds from the trust.

Daughter and father's girlfriend at odds over his will

It is likely well known among most in Miami that the effects of advancing age can often leave people with a diminished mental capacity. It is at this time that they rely heavily in others (such as spouses, family members or caretakers) for their daily needs. While such service is often valued by other family members and friends who may not have the time to offer it themselves, the motives of those who provided it is often questioned if it appears that the recipients treated them favorably in their wills. Accusations of caregivers exercising undue influence over those nearing the end of their lives may be common in such situations.

Such is the claim being made by the daughter of a famed Illinois disc jockey. Those who were close to the man during his life state that it was no secret that the man's daughter and his longtime girlfriend did not have a healthy relationship. Now the daughter is alleging that the woman took advantage of the man (who the daughter claims was suffering from dementia near the end of his life) and influenced him to completely leave her and his grandson out of his will. She have even reached out to her father's former fans for support, asking for contributions to help cover her legal fees.

Grieving mother left to deal with complex affairs of son’s estate

In a perfect world, Miami residents would see to their estate planning early on in life so that their family members and friends are not left scrambling to handle their affairs once they are gone. However, oftentimes people (especially younger adults) do not have the knowledge needed to effectively prepare their estate planning instruments, and little time to dedicate to acquiring it. Thus, it is something that often gets put off until tomorrow. Yet in the event that tomorrow does not come with them, their immediate may left to deal with not only their estate affairs, but also the aftermath of what may have caused their untimely deaths.

An Ohio woman is trying to handle the matter incident to her son’s death while also attempting to find time to mourn his loss after he was killed while fulfilling his duties as a police officer. As executor of his estate, she is currently attempting to work her case through probate court, yet an unexpected snag has delayed its progress. That delay is largely due to state’s workers’ compensation agency having placed a lien on insurance payouts. The lien is a result of the agency’s attempt to recoup the over $8,200 it paid towards her son’s medical bills, which it is says it is entitled to collect after having learned that the woman agreed to a settlement with her son’s auto insurance company as well as that of the driver that struck and killed him.

Spotting the signs of will fraud

You may hear news of disputes over wills in Miami and automatically write them off to simply being the desperate actions of jealous people who are upset about being disinherited. Yet it has been our experience here at The Law Offices of Frye & Vazquez, P.L. that the motives of those who have come to us with questions regarding the validity of a will are typically not financial. Rather, their concerns were primarily over the potential of their loved ones being taken advantage of.

Of course, people often only learn about late amendments made to a person’s will after he or she has passed on. At that point, proving that he or she might have been unduly influenced to make such changes can be difficult. Thus, the trick is to try to identify scenarios where one might be trying to take advantage of your loved one while he or she is still here. Listed below are some signs that should raise your concern:

  •          Your loved one ceases communication with you or others who may be affected by his or her estate
  •          Your loved one becomes increasingly dependent on one person while simultaneously withdrawing from you and other family members or friends
  •          A close friend or caretaker suddenly assumes control of your loved one’s health and financial affairs
  •          Unexplained asset transfers or other activity occurs with your loved one’s financial accounts

Defining types of guardianship abuse

One of the main reasons that Miami residents are encouraged to see to their estate planning early on in their lives to protect themselves and their assets in the event that they become incapacitated. Those who do not risk their decision-making power being handed over to a professional guardian, who may be someone to whom they or their families have no connection with whatsoever. While the law does require that professional guardians be subjected to rigorous background screening and undergo several hours of specialized training, guardianship abuse remains a problem. The United States Government Accountability Office reports that between 1990 and 2010, select cases of guardianship abuse resulted in $5.4 million being stolen from wards.

 One of the keys to avoiding guardianship abuse is to recognize and report it. According to the Florida Guardianship Law, any of the following may qualify as a form of such abuse:

  • Using the position of being a guardian for the purpose of financial gain
  • Attempting to influence a ward (or any of a ward’s family members) into initiating verbal, written, electronic or sexual activity
  • Violating any of the rules adopted by the Office of Public and Professional Guardians regarding proper conduct and procedures

What is an IRS Form 706?

If you have been named as the executor of the estate of a friend or family member in Miami, then one of the first things that you should consider are the tax considerations of the assets you are now in charge of. This requires becoming familiar with the IRS Form 706. What is this form? It is the one used to submit an estate tax return. Copies of this form can be downloaded directly from the Internal Revenue Service’s website. Make sure, however, that you are using the current year’s form, as these documents are often updated annually.

Form 706 will assist you in determining the value of your loved one’s estate. It helps in identifying the “stepped-up” valuation of the estate assets. For example, if your loved one purchased stock several years ago, and then left those shares to his or her beneficiaries upon his or her death, the Form 706 allows those heirs to minimize capital gains taxes by treating the shares as if they were purchased at their current market value.

Beneficiaries questioning administrative costs of estate

Estate administration can often become a contentious affair, even when Miami residents have done their due diligence in preparing wills prior to their deaths. Particularly in cases involving a high volume of assets, those who believe that they may have an interest in an estate may contest documents and ask that rulings be revisited at seemingly every turn, thus prolonging the administration process for years. Such long, drawn-out legal battles can take a heavy toll on an estate’s assets.

Administrative costs are exactly what has come under scrutiny in a legal battle in Pennsylvania involving an estate case that is entering its tenth year. At the center of it all is the estate of a prominent area attorney and his wife, a local dentist. The couple was killed in a plane crash in 2007. The beneficiaries (made up largely of the couples nieces and nephews) are calling the over $2 million charged to the estate during the five-year legal battle to determine the validity of the couple’s will exorbitant. They are asking that documents by turned over detailing the work done by the former law firm of the estate’s administrator. Through their attorney, they claim the 58 attorneys the firm involved in the case demonstrate an example of it “’milking’ the estate like a ‘fatted calf.’” Representatives from the firm dispute this assertion, saying the complexity of the case warranted such resources.

Detailing the court’s involvement in a trust administration

Unless you have experience in working with trust law, your understanding of the roles and responsibilities that come with the office of a trustee is likely limited. If you are asked to serve in such a role, there are resources out there to help advise you (including us here at The Law Offices of Frye and Vazquez, P.L.). You might also wonder what sort of guidance you might expect from the court. The answer may surprise you.

Unlike with the disposition of assets through a will, the courts tend to remain relatively uninvolved in trust administration proceedings. In fact, except in the review of costs such as trustee reimbursement or the formation of a testamentary trust, court involvement in trust proceedings typically only occurs in response to a complaint being filed by any of a trust's interested parties. Issues that may provoke judicial proceedings in relation to a trust (as shared by the Florida Trust Code) may include:

  •          Determining the validity of any part of a trust
  •          Appointing you (or another) to the role of trustee, or removing you from such a position
  •          Settling any of the trust's accounts
  •          Obtaining a declaration of rights
  •          Determining any matters involving you as a trustee or any of the trust's beneficiaries
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