Clerk’s fees for filing opening a probate administration jumped rather dramatically on June 1, 2009.

Both Summary Administration and Formal Administration filing fees saw a $115 increase statewide.  The new fees were updated on the Alachua County Clerk’s website.

But don’t blame the clerks!

The new clerk’s fees, signed into law by Charlie Christ last week do not benefit the clerk’s office.  Instead, they are funneled for other state fund allocations.

Probate fees were not alone on the increase.  Foreclosure filings appear to have been hit the worst – which may result in a significant decrease in cases filed.

Another scheduled fee hike is due for July – let’s hope probate fees don’t see another hit!

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Interested in learning more about the Florida probate process? Our sister site, WeProbateFlorida.com includes a Free ebook when you sign up for our Florida Probate newsletter. (You keep the book even if you cancel your free subscrption).

Even existing Gainesville probate clients of ours can learn more useful information about the process and planning techniques that may benefit you in the future and planning of your own estate!

Click here to sign up for our Florida Probate Newsletter.

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1. Alachua County Probate Lawyer|Attorney|Law Firm

Yes, many people know Gainesville is the Alachua County seat, but this post is to help future clients find our site.

Alachua County is made up of the following cities: Alachua, Archer, Gainesville, Hawthorne, High Springs, La Crosse, Micanopy, Newberry (Jonesville) and Waldo.

Click here to schedule your FREE Alachua County Probate consultation (by phone or in office!)

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1. Sign up for our Florida Probate Newsletter

The highlights include the concept of lawyer shopping (by price alone), efficient communication with the attorney and the fact that you are NOT required to use the attorney who prepared the Will!

Check out the story here.

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1. Florida Probate Guide for Florida Personal Representatives – Coming Soon!

Florida Medicaid Estate Recovery Program

The Medicaid Estate Recovery Program is a federal-state program designed to recover some or all Medicaid-funded medical costs from the Estates of certain Medicaid beneficiaries, including nursing home residents whose costs of care were covered by Medicaid.

Are all recipients subject to Estate Recovery?

No. The state does not file a claim where the recipient is under the age of 55 at the time of death or where there is a surviving spouse, minor child or blind/disabled child.

Does the state try to recover all the monies paid on behalf of a recipient?

No. The claim only includes the amount paid on behalf of a Medicaid recipient for services rendered after the recipient reaches age 55.

How does the state know that an estate is opened?

Florida law requires the personal representative of an estate to notify all creditors that an estate is being administered. Medicaid is a creditor if an individual received benefits from the Medicaid Program. In addition, each month, the state obtains copies of reports prepared by the county Clerks of the Court which list the estates opened during the previous month. Estate information is matched against a list of Medicaid recipients and, as appropriate, a claim is filed.

The Medicaid Estate Recovery Program is also subject to Federally Mandated Information Exchange laws. As such, state agencies such as The Office of Vital Statistics (where the Florida death certificates are issued) and federal agencies such as the Social Security Administration office may share information regarding a deceased person. Again, estate information is matched against a list of Medicaid recipients and, as appropriate, a claim is filed.

What assets are subject to potential recovery?

All assets owned by the deceased recipient are considered. However, there are exceptions. For example, the Medicaid Estate Recovery Program will not force the sale of the homestead – where it has retained its Florida Constitutional Protection.

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Details of her curious crime came to light today in court, when Morgan, 48, pleaded guilty to several charges and was sentenced to four years’ probation.

Her apparent motive: drugs.

Circuit Judge Pat Siracusa approved the probation sentence Morgan’s public defender had worked out with prosecutors. But he urged her to add drug treatment to her punishment.

“I want to make sure that you’re addressing what brought you here in the first place,” Siracusa told her. He read a letter from Morgan’s daughter describing Morgan’s childhood of sexual abuse followed by a lifelong drug addiction.

“All my life I can’t think of a time that she has been completely clean,” wrote Lisa Adams, who lives in Louisiana.

Morgan, who sat hunched over in court and cried at times, agreed to the treatment. Dade City police said Morgan was the sole beneficiary when her mother died in February. She stood to inherit $15,159 and a house.

To expedite the probate process, authorities say, on March 7 she photocopied the signature of Pasco County Judge William Sestak onto a document releasing the funds and stole a court clerk seal to make it look more official. Then she tried to pass the document as real at a local bank.

Sestak, who doesn’t routinely sign probate documents, said he’s never had anyone try anything like this. “It looked good,” he said of the signature. “It looked like it fit right there.”

A restitution hearing will be scheduled if the two sides can’t agree on an amount Morgan must pay back. Jason Bavol, her public defender, said it’s a moot point because the money Morgan stole belonged to her.

“In a sense, she took money from herself,” he said. Siracusa left open the possibility of reducing her sentence to two years’ probation if she can pay the restitution off quickly. He left her with one final warning: “You can’t do anything like that ever again, okay?”

– Molly Moorhead, Times staff writer

source:  http://blogs.tampabay.com/breakingnews/2007/07/rush-to-inherit.html

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WHAT IS A WILL?

A will is a written direction controlling the disposition of property at death. The laws of each state set the formal requirements for a legal will. In Florida;

1. You, the maker of the will (called the testator), must be at least 18 years old.

2. You must be of sound mind at the time you sign your will.

3. Your will must be written.

4. Your will must be witnessed in the special manner provided by law for wills.

5. It is necessary to follow exactly the formalities required for the execution of a will.

6. To be effective, your will must be proved in and allowed by the probate court.

No will becomes final until the death of the testator, and it may be changed or added to by the testator by drawing a new will or by a “codicil,” which is simply an addition or amendment executed with the same formalities of a will. A will’s terms cannot be changed by writing something in or crossing something out after the will is executed. In fact, writing on the will after its execution may invalidate part of the will or all of it.

WHAT CAN BE ACCOMPLISHED BY A WILL?

1. You decide who gets your property instead of the law making the choice for you.

2. You may name the personal representative (executor) of your will as you choose, provided the one named can qualify under Florida law. A personal representative is one who manages an estate, and may be either an individual or a bank or trust company, subject to certain limitations.

3. A trust may be created in a will whereby the estate or a portion of the estate will be kept intact with income distributed or accumulated for the benefit of members of the family or others. Minors can be cared for without the expense of proceedings for guardianship of property.

4. Real estate and other assets may be sold without court proceedings, if your will adequately authorizes it.

5. You may make gifts, effective at or after your death, to charity.

6. You decide who bears any tax burden, rather than the law making that decision.

7. A guardian may be named for minor children.

WHAT HAPPENS WHEN THERE IS NO WILL?

If you die without a will (this is called dying “intestate”), your property will be distributed to your heirs according to a formula fixed by law. Your property does not go to the State of Florida unless there are absolutely no heirs at law, which is very unlikely. In other words, if you fail to make a will, the inheritance statute determines who gets your property. The inheritance statute contains a rigid formula and makes no exception for those in unusual need.

When there is no will, the court appoints a personal representative, known or unknown to you, to manage your estate. The cost of probating may be greater than if you had planned your estate with a will, and the administration of your estate may be subject to greater court supervision.

MAY A PERSON DISPOSE OF HIS OR HER PROPERTY IN ANY WAY HE OR SHE WISHES BY A WILL?

While any sort of property may be transferred by will, there are some particular interests in property which cannot be willed because the right of the owner terminates automatically upon his or her death, or others have been granted rights in the property by Florida law. Some examples of these types of property rights or interests are:

• Except in certain very specific circumstances a homestead (that is, the residence and adjoining lands owned by a person who is survived by a spouse or minor child up to one-half acre within limits of an incorporated city or town or up to 160 acres outside those limits);

• A life estate : property owned only for the life of the owner;

• Any property owned jointly with another person or persons with right of survivorship (a tenancy by the entireties, which is limited to joint ownership between a husband and wife, would be one of these).

A person may not disinherit his or her spouse without a properly executed marital agreement. The law gives a surviving spouse a choice to take either his or her share under the will or a portion of the decedent’s property determined under Florida’s “elective share” statute. This statute uses a formula to compute the size of the surviving spouse’s elective share, which includes amounts stemming from the decedent’s jointly held and trust property, life insurance, and other non-probate assets. Because this formula is very complicated, it is usually necessary to refer this matter to an attorney with extensive experience in this area of law. Also, if your will was made before the marriage and the will does not either provide for the spouse or show your intention not to provide for him or her, then your spouse would receive the same share of your estate as if you had died without a will (at least one-half of your estate) unless provision for the spouse was made or waived in a marital agreement.

MUST A PERSON LEAVE A CHILD AT LEAST ONE DOLLAR?

No. This is not necessary and can actually cause considerable added expense to the estate. It is better simply to state in the will that no provision is being made for that child.

HOW LONG IS A WILL GOOD?

It is “good” until it is changed or revoked in the manner required by law. Your will may be changed as often as you desire while you are sane and not under undue influence, duress, or fraud, provided it is changed in the required manner. Changes in circumstances after the execution of the will, such as tax law amendments, deaths, marriage, divorce, birth of children, or even a substantial change in the nature or amount of your estate, may raise questions as to the adequacy of your will. All changes require a careful analysis and reconsideration of all the provisions of your will and may make it advisable to change the will to conform to the new situation.

DOES A WILL INCREASE PROBATE EXPENSES?

No. If there is property to be administered or taxes to be paid or both, the existence of a will does not increase probate expenses. A will frequently reduces expenses. If there is real or personal property to be transferred at your death, the probate court will have jurisdiction to ensure that it is transferred properly, either according to your will, or, if there is no will, in accordance with the inheritance statute. Thus, even if you have no will, your heirs must go to court to administer your estate, obtain an order determining your legal heirs, or obtain a determination that administration is unnecessary. These procedures are often more expensive than administering your will, since a properly drawn will names the beneficiaries and delineates procedures to simplify the administration process.

ARE ESTATES BY ENTIRETIES OR JOINT TENANCY WITH RIGHT OF SURVIVORSHIP SUBSTITUTES FOR A WILL?

Joint tenancies with rights of survivorship can be established when two or more persons title bank accounts and other assets in their multiple names with the intent to have ownership pass directly to the surviving named owners when one dies. A “tenancy by the entireties” is much the same but involves only married persons. These forms of joint ownership can avoid probate of the account or other asset when an owner dies. While this can be very efficient in some cases, use of joint ownership can be fraught with problems at death and cause more problems than it solves.

Among other unforeseen problems, indiscriminate use of joint ownership can cause an increase in estate taxes over the joint lives of married persons, force double probates in the event of simultaneous deaths, create unfairness as to who pays for funeral expenses and claims against the decedent, raise undesired exposure during life to the debts of co-owners, and cause a shortage of funds for payment of estate taxes which can cause litigation with the taxing authorities.

IS A LIFE INSURANCE PROGRAM A SUBSTITUTE FOR A WILL?

No. Life insurance is only one kind of property that a person may own and a will is necessary to dispose of other assets that a person owns at death. If a life insurance policy is payable to an individual, the will of the insured has no effect on the proceeds. If the policy is payable to the estate of the insured, the disposition of the proceeds may be directed by the will. Life insurance can be useful in providing cash at death for payment of taxes and expenses, but like most strategies for insurance, the careful person will consult a lawyer, a life insurance counselor, and a financial advisor. Mistakes in ownership and beneficiary designations in these policies can cause great increases in estate taxes owed.

IS A TRUST A SUBSTITUTE FOR A WILL?

No, in most situations. A trust may be used in addition to a will. This is because a trust can handle only the property that has been put into it. Any property of a person that is not placed in the trust either during life or at death in most instances escapes the control of the trust. It is the will that controls all property in a decedent’s name at the time of death if the will is drafted properly. Trusts can be helpful to speed administration and save taxes if they are drafted properly and funded during life with the property intended to be transferred by the trust. Often, however, improperly drafted or incorrectly funded or administered trusts can add to the cost of settling estates, not lower it. Furthermore, it is the probate of the will that can clear creditors’ claims, which is not possible with just a trust administration.

DO YOU HAVE TO GO TO COURT TO PROBATE A WILL?

No, personal court appearances are usually not needed to probate a will. However, documents must be filed with the court to procure a probate order and administer estates. In most counties, neither the estate attorney nor the interested persons ever appear in the courtroom.

CAN A WILL REDUCE TAXES?

A well-drawn will can reduce estate and income taxes that may arise when someone dies. Estate taxes are often by far the largest cash expense an estate can have. There is also the possibility that Congress may increase the impact of the estate tax in the future. In addition, proper planning must be made for income tax advantages. Proper planning with a will is indispensable in taking these benefits in the tax codes.

WHO SHOULD PREPARE A WILL?

No sensible person would employ “just anyone” to fill teeth, take out an appendix, or deliver a baby. The person who wants these services performed skillfully with the minimum risk to health, life, property, or the accurate execution of his or her wishes, will engage the services of a trained person. Except in dire emergency, these important tasks should not be performed by anyone except the professional.

The drafting of a will involves making decisions that require professional judgment which can be obtained only by years of training, experience, and study. Only the practicing lawyer can avoid the innumerable pitfalls and advise the course best suited for each individual situation. In addition, an experienced attorney will be able to coordinate the use of other skilled professionals, such as an investment advisor, actuary, insurance specialist, and tax accountant to complete a proper estate plan.

Moreover, there is no such thing as a “simple will.” Even smaller estates can have complexities only foreseeable by the experienced attorney.

SOME SUGGESTIONS CONCERNING WILLS

1. Marriage does not cancel a will in Florida, but a spouse acquired after the execution of a will may receive the same portion of your estate that he or she would have received had you died without a will (at least one-half).

2. If you have moved to Florida from another state, it is wise to have your will reviewed by a Florida lawyer in order to be sure that it is properly executed according to the laws of Florida, that the witnesses are readily available to prove your will in Florida, and that your personal representative is qualified to serve in Florida.

3. Before your will is effective to dispose of your property, it must be proved in the probate court. If the will is self-proving and otherwise valid, it may be admitted to probate without further proof. If the will is not self-proving, it generally must be proved by the oath of one of the witnesses. The oath must be given before a circuit judge, clerk of court, or a commissioner specially appointed by the court for that purpose. (Under certain circumstances, the court may permit the will to be proved by other means permitted by law.) A will can be made self-proving either at the time of its execution or later, which saves the time and expense of locating a witness and obtaining his or her oath after your death. For your will to be made self-proving, you must acknowledge the will before an officer authorized to administer oaths; the witnesses must make affidavits before the officer; and the officer must evidence the acknowledgment and affidavits by a certificate attached to or following the will. An appropriate form of certificate is prescribed by Florida law. The self-proving procedure is in addition to the normal execution and witnessing of the will, not in place of it.

4. No matter how perfect a will may be prepared for you, unless it is properly executed in strict compliance with the laws of Florida, the will may be entirely void. Be sure that you execute your will in the presence of your attorney, who knows exactly how and in what order the will should be signed.

5. Every person owning property who wishes to exercise control in the disposition of that property when he or she dies, should have a will regardless of the value of the property. Of course, the larger the estate the greater the tax consequences.

6. The following additional documents should be considered for signing when you make your will:

• Living Will: Florida Statutes now provide for a written declaration by an individual specifying directions as to use of life-prolonging procedures.

• Durable Power of Attorney: This document can assist in handling the property of a person who has become incapacitated without having to open a guardianship proceeding in court. This is especially valuable for paying the bills and protecting the assets of an incapacitated person.

• Health Care Surrogate: Florida law now allows individuals to designate a person to make health care decisions for them when the individual may not be able to do so. Included in this important appointment is the power to decide when to withdraw medical procedures.

• Pre-Need Guardian Designation: Florida law allows you to designate a person who could be appointed guardian over you should you become incapacitated and/or over your children should you become incapacitated or upon your death. If you fail to designate a guardian, the Court will do so for you if and when it becomes necessary.

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1. Avoiding the Florida probate process . . . is it really that bad?
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If yes, then the estate is eligible for Summary Administration in the Florida probate system, even if the value of the homestead is more than $75,000.

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1. “Quick” Q&A – “What is the creditor period and why do we need to publish a Notice to Creditors?”
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“Quick” Question

“What is the creditor period and why do we need to publish a Notice to Creditors?”

“Quick” Answer

Under Florida law, the petitioner or personal representative of an estate must publish Notice to Creditors in the appropriate newspaper, to give creditors a chance to make valid claims against the estate for debt that the decedent incurred during his or her lifetime. This creditor period last for 90 days from the date that the Notice is first published.

“In Florida, under F.S. 735.2063 (Notice to Creditors), a Notice to Creditors may be published when an Order (of Summary Administration) has been entered. Once published, claims by creditors who are not known or are not reasonably ascertainable are forever barred unless those claims are filed within 90 days of publication.

Furthermore, F.S. 735.206 (Summary administration distribution) reads that after 2 years from the death of the decedent, neither the decedent’s estate nor those to whom it may be assigned shall be liable for any claim against the decedent, unless proceedings have been taken for the enforcement of the claim.

Laymen’s translation: If it has been less than 2 years since the decedent died, you must publish a Notice to Creditors (in the legal notices section of the newspaper of the appropriate county).

If you publish Notice on Day 1, then you’ve got to hold your breath until day 91 and hope that no creditors file a claim against the estate. Once you’re past this 90 day creditor period, claims are barred.

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Interestingly enough, I’m not interested in taking on more work than I need to, just so that my client can fight and posture, while standing meekly behind me. We are all about efficiency and I don’t doddle around with clients who want me to drag out a matter just to prove a point.

I was talking to fellow probate attorney down in Miami who said that a $50k estate he was handling, was whittled down to $10k after attorneys fees in costs, simply because of a few feuding siblings. He, the attorney, said he was sick to his stomach when he went to cash the final checks from his client, because he was sure that his client was going to kick up some more dust and quarrel about the fees.

Uncontested probate, much like uncontested divorce in Florida is more affordable and considerably less time consuming than duking it out.

Let’s all make nice people. The money is not worth the headache, not for the clients OR the attorneys. (just my 2 cents)

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1. Avoiding the Florida probate process . . . is it really that bad?
2. Do it yourself estate planning – PITFALLS!
3. PRESS RELEASE: “Quick” Q&A Feature added to Florida Probate Blog, WeProbateFlorida.com/blog