Our firm regularly assists
attorneys outside the state of Florida with the following matters:
Probate Non-Resident - Foreign Personal Representative
Foreign Will to Probate After Two
Years from Date of Death
Many estates have already been opened through a probate proceeding
outside of Florida called “Domiciliary Proceedings”.
Nonetheless, without any proceeding at all, a Personal Representative
appointed in the non-Florida jurisdiction may present a certified
copy and other documentation to be recorded in a Florida county
which will then permit the foreign Personal Representative
to satisfy mortgages of record or make modifications therein.
A typical proceeding may be to clear one or two parcels of
real estate in Florida wherein the foreign will and other
documents may be admitted to record at the Clerk of Courts
Division in the county where the land is located, with an
accompanying petition to admit the foreign will to record,
exemplified, authenticated copy of the foreign will and petition
for probate with distributive document from decedent’s
home state. If the court finds that the records are in order,
it will permit an order admitting the foreign will to record
which will be valid to pass the title to real estate without
a subsequent deed or full probate proceeding. The approximate
costs and attorney fees will run $850.00 for this procedure. You probably don't want this procedure if more than two beneficiaries are set out in the Will or one is deceased.
Estate Under $50,000 Within Two Years
of Death
If two years has not passed from the date of death of the
non-resident, and should the estate be less than $50,000.00,
then the Florida lands may be cleared through another Summary
Procedure wherein the foreign exemplified copy of will, order
admitting documents to record, the Letters or their equivalent,
the part of the record showing the names of the devisees and
heirs may be permitted to be recorded in the county where
the Florida land is located. Upon presentation of the documents,
the court shall admit the will and any codicils to probate
if they comply with our laws. Subsequent to admitting them
to record, it is necessary to clear creditors claims through
publication which will take approximately three months to
obtain a second order which will clear the property for transfer
to third parties or to the respective beneficiaries. This
summary type procedure will have an approximate cost of $850.00.
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Full Ancillary Administration
When the non-resident of Florida dies leaving assets including
real estate in excess of $50,000.00, and cannot qualify for
a summary procedure, then it is necessary to open a full Ancillary
Administration which will generally run approximately 3% of
the value of the properties with a minimum charge of $1,500.00.
However it may be still possible to convert the procedure
to a Summary Administration after the running of the three
month non-claim period. This will require the appointment
of a Personal Representative authorized within the State of
Florida, but will also produce formal Ancillary Letters of
Administration which may be used to clear intangible assets
and other investment securities or to liquidate insurance
proceeds through the normal channels.
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Summary Procedures
Summary Administration - Under $75,000
Should real estate form part of the Florida estate of the
non-resident or resident and the value of the property not exempt from claims
of creditors
does not exceed $75,000.00, (over the amount of the exempt
Homestead located in Florida) OR the decedent has been dead
for more than two years, then a Summary Administration may
be taken. You may include the value of the Homestead located
in Florida regardless of value; of course it may be subject
to estate taxes, but the property can be put into all the
heirs' names and then they are free to transfer the property.
A petition should be signed by
the person nominated as Personal Representative under the
will and offered
for probate, the surviving spouse, if any, the heirs of law
or beneficiaries
who are of legal age, or their guardians. You will need to
attach a complete
list of assets, their estimated value, together with any assets
claimed to be
exempt. You will need to set down a proposed schedule of distribution
of all
assets to either those beneficiaries set forth under a will
that is produced,
or to the intestate heirs under the Florida statute. A Notice
of Creditors
will be published subsequent to the initial order received
by the court which
must be published for two consecutive weeks in a newspaper
in the county
where the land is located or Summary Administration takes
place. This
procedure will cost approximately $750.00 to complete but
will most likely
involve a distribution directly to the beneficiaries set forth
under the
will, however the beneficiaries may thereafter transfer their
interest in the
property by Quit-Claim Deeds. If Homestead is involved the
Petition for Homestead will cost an additional $350.00 to clear.
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Post Death Trust Administration
It is necessary to file a Notice of Trust with the Clerk
of Court, within reasonable period after the death of the
settlor. This office can provide both checklists on an informal
or formal basis to your clients and to the successor trustees
nominated in the trust. We can assist in the following:
1. Asset intake and description;
2. Filing of Wills and documentation;
3. Assistance in preparation of initial inventories and follow
up accounts;
4. Affidavits of Continuous Marriage for clearance of real
estate held jointly;
5. Recording of necessary documents with Clerk of Court;
6. Acceptance and/or Resignation of Successor Trusteeship
placed of record;
7. Notifications to trust beneficiaries with proper documentation
pursuant to state law;
8. Securing necessary tax identification;
9. Filing of proper Florida estate tax documents to secure
release of tax lien, Non-Tax Certificate for recording in
land records;
10. Assistance in sales of real property and requirements
for trustees;
11. Issuance of title insurance;
12. Assistance in proper designation for tax elections and
coordination with estate’s accountants;
13. Early release of real estate from IRS and Florida Dept.
of Revenue;
14. S Corporate Stock election or cancellation;
15. Filing of tax disclaimer for tax planning through local
clerk, within nine months of death;
16. Design of QTIP, and/or IRA benefits to flow through Credit
Shelter Trusts and coordination with Pension Administrator;
17. Assistance with transfer and/or liquidation of assets.
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Real Estate
Our office specializes in the issuance of title insurance
commitments and policies and will do so at a competitive price
as all other title agencies within Lee County, Florida. It
is helpful to your client to have initial protection from
our office which can be given through drafting of simple contracts
at a nominal charge with no additional attorney percentage
or compensation, other than the standard title agent's fee,
unless conflicts arise between the parties, or breach of their
sale agreement. Very often, a turn around in sale of the property
for your client may take place and proceeds distributed within
30 to 45 days.
If Federal Estate Taxes or Florida Estate Taxes delay the
clearance of real estate, our office is prepared to assist
in the clearance of any lien from said taxes to permit your
client as Personal Representative to transfer the
real estate in the shortest period of time.
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Estate Planning
Family Trust Planning
It is best to take advantage of the Unified Credit which
is set at $1,000,000.00 in 2002 which will go up to $3,500,000.00
in the year 2009 and be phased out in 2010, only to go back
to $1,000,000.00 in 2011. Commonly, people underestimate their
net worth and can easily set up a common A-B type trust with
the credit shelter portion funded with $1,000,000.00 or more
of assets. The family trust is administered for the lifetime
benefit of the surviving spouse with a taxable “ascertainable
standard” permitting a distribution to the surviving
spouse for health care, support, maintenance, and education.
Also spouses should revisit their trusts since the tax laws
have changed significantly.
In addition to tax savings, there are other valuable benefits,
including no need to change ownership of assets after first
spouse to die. The assets are exempt from the expenses and
delayed probate process. The assets are not part of public
record. Further the IRA or pension benefits can be planned
to fund the credit shelter if needed.
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Pour-Over Will
Since the majority of provisions in an estate plan are contained
in the Living Trust document, a short document will be needed
for your Pour-Over Will. Since there is still a possibility
of inheritance from a third party, or accidental death in
which a probated estate will be necessary, it is always necessary
to have a Pour-Over Will. Also if some assets are not titled
in the name of a Living Trust prior to death, the Personal
Representative will "pour them over" into the Living
Trust after death.
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Health Care Surrogate/Power of Attorney
A power of attorney for health care, or otherwise called
a Health Care Surrogate, is part of necessary planning. It
is a planned document consisting of one or two pages in which
an individual appoints an agent to make health care decisions,
including a decision to end all invasive medical procedures
and all life prolonging measures such as withholding food
and water. In Florida it is now permissible to elect to discontinue
life supporting methods if you are in a vegetative and otherwise
end-state condition. You can specify which procedures shall
be continued as well as discontinued and they set forth which
doctors or health care facilities you wish to be employed.
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Durable Power of Attorney - Property
Should you become disabled, be in failing health, or become
incapacitated through an accident or injury, it is possible
to appoint a trusted family member or friend to administer
property, assets, both intangible and tangible for you without
going to court through a guardianship procedure. During your
lifetime you may give this executed and notarized written
document to your trusted family member or agent or may have
a legal firm or other professional hold the same for you under
written directions to release the document only upon you setting
up a certain contingency. In Florida, “springing powers
of attorney” are valid in 2002 and currently a legal
office may agree in advance to hold an executed Power of Attorney
without releasing the same unless certain contingencies or
prior conditions are met in accordance with your desires.
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Personal Residence Trust
In order to take advantage of the current gift tax schedule,
and to discount the value of your property for the period
of time you will live within the same, you can set up a Qualified
Personal Residence Trust of up to two parcels of real estate.
The main benefit of such a trust is to permit the removal
of the asset from your estate upon your death provided you
live for the number of years you designate in the trust instrument.
You will have the benefit of retaining a “life estate”
interest in the property, as well as refinancing the property
and donating sufficient expense monies to the trust to pay
for taxes and other maintenance and upkeep costs. Even after
the set period of years have passed you could permit your
spouse to retain a life estate interest in said trust and
the asset will not be counted in either estate for tax purposes.
Another option would be to have your trusted family member/trustee
lease back the property to you after the period of years set
forth in the trust has been met.
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Irrevocable Life Insurance Trust
Since insurance proceeds are subject to estate taxation in
the event the policy is owned by the insured at the time of
his or her death, a trust may be established during the insured’s
life to purchase a policy of insurance and pass all future
growth value to the heirs, including the face value of the
policy. The insured, joined by spouse if any, may contribute
up to $10,000.00 ($20,000.00 if joint gift by spouse) per
donee set forth in the trust. Letters must be issued yearly
by the trustee to the donees giving them a minimum period
(30 days) to withdraw the gift, however, the majority of donees
do not accept the gift which permits the gift to be used to
purchase the insurance premiums on the insured’s life.
The donor may also retain the right to alter the beneficiaries
who will receive future annual gifts.
Upon the death of the settlor/insured, the ILIT collects the
death benefits under the insurance policy and invests the
insurance proceeds. The agreement provides that the trust
may pay their surviving spouse (if not one of the insureds)
all of the income generated by the trust principal and so
much of the trust principal necessary to pay for his or her
health care, education, support, and maintenance in his or
her accustomed style of living. The trust is structured to
keep proceeds out of his or her estate and therefore is sheltered
from the estate tax of the surviving spouse. The spouse or
third party can be given the right to designate which of the
children, grandchildren or other parties can be named as beneficiaries
if this is desirable.
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Special Needs
In the event a trust is established, this office may assist
in drafting special needs provisions within the Living Trust
so that the beneficiary of your client will not lose Medicaid
eligibility.
Should you desire to have a trust established or probate
taken for a Florida resident or out of state decedent and
have other questions or would like to set up a consultation,
please do not hesitate to call me at 941-542-1355 or contact
me via e-mail.
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