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. For help or answers to will and estate related questions, you can contact BaskinFleece at 727.572.4545.
1. The maker of the will (called the testator), must be at least 18 years old.
2. The testator must be of sound mind at the time they sign the will.
3. The will must be written to be an official document.
4. Important: The will must bewitnessed and notarized 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, the will must be proved in, and allowed by, the probate court.
Click on the image below to watch a short 1 minute video.
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.
Some of the content of this information is courtesy of The Florida Bar and represents general legal advice. Because the law is continually changing, some provisions in this blog may be out of date. It is always best to consult an attorney about your legal rights and responsibilities in your particular case.
3. 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.
4. 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.
For help or answers to will and estate related questions, you can contact BaskinFleece at 727.572.4545.
Fundamental to trust law, a trustee is always under a duty to give information to a beneficiary. Most states have enacted statutes specifically dealing with this duty to account. The video below goes into more detail.
For the benefit of the hearing impaired, here is the transcript of the video:
In Florida Fla. Stat. 736.0813 provides that a trustee shall provide a trust accounting to the trust beneficiaries at least annually and on the termination of the trust.
The trustee has a whole year to operate as trustee without being required to provide an accounting to the beneficiaries. But, the trustee must provide an accounting annually.
This accounting is the primary method a beneficiary can hold a trustee accountable. Without an accounting, a beneficiary is virtually powerless and at the mercy of the trustee.
Many have asked the question — exactly when is the accounting due? While none of the trust statutes specify a specific time frame when the accounting is due once a year has elapsed, common sense would suggest that a trustee has a reasonable amount of time to provide the accounting.
What is a reasonable amount of time? In my opinion a reasonable amount of time would approximately 60 days from the close of the accounting period. This provides the trustee sufficient time to gather up the final month’s information and assemble the actual trust accounting.
What if the trustee does not provide the trust accounting?
I would suggest that you write to the trustee shortly after the accounting period is up to request an accounting. If the trustee fails or refuses to provide an accounting, you may be justified in arguing that the trustee has committed a breach of fiduciary duty and even a fraud and should at the very least, be removed for intentionally refusing to provide the accounting.
If the accounting is not forthcoming a beneficiary can compel the accounting by filing a law suit for an accounting.
I strongly urge trust beneficiaries to be vigilant in monitoring the trustee and making sure a timely accounting is provided.
Baskin Fleece partner Joseph W. “Jay” Fleece, III, was selected by his peers for inclusion in The Best Lawyers in America© 2015 in the field of Trusts and Estates Litigation. Best Lawyers is based on an exhaustive peer-review survey. Over 52,000 leading attorneys cast more than 5.5 million votes on the legal abilities of other lawyers in their practice areas. Lawyers are not required or allowed to pay a fee to be listed; therefore, inclusion in Best Lawyers is considered a singular honor. Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.”
To schedule an appointment with a Baskin Fleece attorney, call (727) 572-4545. For more information about Baskin Fleece, visit www.BaskinFleece.com.
Trust administration is that process whereby assets and cash which were funded into a revocable or irrevocable trust during the decedent’s lifetime or “poured into the trust after his or her passing”, are marshaled/gathered and made ready for distribution to the beneficiaries named in the trust. Trust administration also requires the filing of a notice of trust with the probate court and is the process whereby creditors are paid, and after all state and federal tax returns are filed and all creditors and other administrative expenses are paid, the trustee makes a final distribution of the trust assets and cash. The process is similar to Florida probate administration, but there is no circuit judge supervising the administration, nor is a fiduciary bond usually posted, and many times it can be accomplished more efficiently, and thereby cheaper and faster, than a full probate administration.
Probate litigation encompasses all forms of contested matters arising in a probate matter. Some of the contested issues in Florida probate law include the validity of the decedent’s last will and testament; construing the terms of an ambiguous will; spousal share election under the elective share statute; pretermitted spouse and child issues; excessive fiduciary or attorneys’ fees; creditor claims; breach of fiduciary duty by the personal representative; improper accountings; recovery of estate assets and a plethora of other potential issues involving wills and trusts.
Trust Litigation: Many of the same contested issues in a probate estate also exist in trust matters. The main difference is that an independent civil action needs to be filed in order to invoke the jurisdiction of the court and have summonses issued to the Defendants. As Florida trust administration is not court supervised, it is up to the beneficiaries, rather than the probate judge, to make sure the trustee is discharging his duties in accordance with the trust terms and with the law. For the most part the only way a beneficiary can review what the trustee has done is through the annual accounting which the trustee must provide each qualified beneficiary every year. If the accounting is not provided, the trustee has breached his fiduciary duty to keep beneficiaries informed. There are many other fiduciary duties imposed upon a trustee which, if violated, subject the trustee to removal, surcharge or other remedies imposed by the courts. Our lawyers have handled a variety of wills and trust litigation in the courts of Tampa, St. Petersburg, Clearwater and throughout Florida.For more information about Probate and Trusts, please contact BaskinFleece at 727.572.4545.