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Administrative trust after death

Administrative trust after death

Distributing a person’s assets after they die depends on the instructions left behind in a will or trust. In situations where instructions were not left, the state laws govern the distribution of property regardless of the desires a person may have expressed before passing away. A trust may be created during life, either as a revocable trust or an irrevocable trust.

Or a trust may be created under a Will. Regardless of the attributes of the instrument creating the trust, different sub-trusts may be created under the trust. If the assets start in the Will, the Will could name the revocable trust as the beneficiary, this is a “pour-over” Will. Or, the Will could set up trusts directly. If the assets start off in a trust, it may be called a Revocable Living Trust or some other name. There is no magic to the name of the trust. It just cannot be confusing or violate a copyright. Upon death, a temporary Administrative Trust may be created to pay expenses prior to splitting as directed by the instrument.

What Is Trust Litigation?

Trust litigation is where a Beneficiary or Trustee or even an heir of a Trust feel their legal rights are trampled upon and need legal counsel to represent them in court. Typically, the trust litigation is between the Trustee vs. the Beneficiary/ heir. Many issues can arise, and mostly due to transparency, the beneficiary feels the Trustee may be self-dealing. Self-dealing is where the Trustee puts their needs and wants before the Beneficiaries. Now, the Trustee knows they have the fiduciary duty to put everyone above their self-interest first and to comply with the wishes of the Trustor.

What is the First Step the Trustee Should Take?

So, what happens to a living trust at death? Upon the death of the owner of a living trust, the successor trustee will take over. The first step is to contact the investment firm that is holding the living trust or the attorney representing the trust owner. They will have the necessary documents (the trust agreement) to begin executing the provisions of the trust.

A change of ownership

If the trust holds real property, the next step is to bestow title in the successor trustee to ensure that the property will be handled according to the settlor’s wishes. An affidavit ought to be recorded with a certified copy of the death certificate against each real property held in a living trust.

This process transfers the property’s title from the deceased settlor to the new trustees. A change of ownership form is typically recorded simultaneously with the affidavit. If the trust transfers real property from parents or children by any means exempt from property tax reassessment, the trustee must complete the proper exemption form. An attorney is recommended to help prepare these documents.

Pot-Trust

A Pot Trust is a trust set up for several beneficiaries, typically children. The purpose of a Pot Trust is to keep the funds in one “pot” until a later event. For example, at the death of the parents, the assets may be kept in one pot until all the children have graduated from college or reached age 25. By doing this, parents can ensure that each child has enough to go get a good start in life.

Let us say that there are 2 children ages 18 and 22 at the death of the parents and there are $400,000 in assets. Assume that the 22-year old went to a school costing $50,000 per year and has now graduated. If the 18-year old went to the same school, without a pot trust, their entire inheritance would go toward their education. With a pot trust, once they are both out of college, the trust would split, and each would get $100,000. Once the pot trust terminates, the remaining balance could be distributed outright or in further trust.

What to do after a passing

Get the death certificate. You will need to get as many original death certificates when settling a trust after death based on how many bank accounts, properties, etc., you must receive the original death certificates. Contact Social Security if necessary. Many times, a check might need to be returned based on when the SSI check was received, after the death of the grantor.

Inventory Trust Assets

Inventory Trust Assets. It takes time to collect all assets, documents, and control them, so no loss of assets occurs. Review Trust Investments: Depending on the number of investments can complicate matters. Many times, a financial advisor may be necessary to understand the ramifications of selling, reinvesting, etc.

Set up a Record-keeping system: Setting up bookkeeping is the foundation of the trust administration process. Identify all beneficiaries and heirs: To add to the time, the Trustee will need to contact the heirs and beneficiaries as to the status of the Trust process. There is a reasonable time frame; the Trustee must get back with the Beneficiary with answers. The above list is just a preview of the full breadth of steps of an accurately complete trust administration process.

How long does it take to get an inheritance?

What if the Beneficiary has been waiting for more than 18 months? If you are the Beneficiary, hopefully, you have been in the loop of the current standings. If not, then, you will need to start by gathering information like the following:

1. Copy of the Trust
2. Banking information
3. Asset updates
How Does the Trust End?

Depending on the terms of the trust, it may be dissolved after all the trust property has been distributed. But, if the terms call for something other than direct distribution to heirs, it may be necessary to maintain the trust for a period. For instance, the trust owner may have left money to a minor child which would require that the trust retain the funds until the child reaches the age of majority in the state of the child’s residence. If that is the case, the trustee will remain responsible for the trust until it is time to make the final distributions.

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Divorces During COVID-19 and How To Get A Divorce

For better or worse, COVID-19 has impacted both relationships and marriages. In turn, it is not surprising that divorces during COVID-19 have been on the rise. The extended time spent at home with family has caused a lot of tension. In an unfortunate twist of fate, the quarantine has revealed a lot of incompatibility issues within married couples. Although some couples have been able to work through marital issues, not all couples have been that lucky. You may be wondering how feasible it is to get a divorce during the pandemic, especially if COVID-19 has impacted employment status and health issues. Even though COVID-19 has added an extra layer of consideration, it is still possible to get a divorce.

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Your Guide On Managing Estate Assets

The probate process is used when loved ones die and they do not leave behind a will. Their assets are not immediately given out and their debts aren’t immediately paid off. Probate can last for years, and it can be a very costly and time-consuming process. It can be difficult to manage loved ones’ assets alone or even try to manage your own assets. Fortunately, there are resources available in assisting in the legal aspects. Attorney Aubrey Harry Ducker Jr. is offering this short guide on managing estate assets and how to get started.

What Is Probate and Probate Administration?

Most people have assets and debts at the time of their death. An individual’s “estate” are the assets and liabilities that they have. Every US state has its own set of laws governing what to do with the estate. During probate, the decedent’s debts must be paid off, as well as any taxes they owe. Probate is used when the decedent did not leave behind a trust. Probate is typically a simple and straightforward process. However, there are circumstances where family members are able to dispute the validity of a will or object to the family member’s state of mind. When disputes occur, they need to be handled in a professional manner by an experienced attorney.

Terms Related to The Probate Process

  1.  Will – A will determines where your assets will be distributed. Your assets include possessions such as your home, car, bank accounts, or personal possessions.
  2.  Living Will – This is also known as an “advance directive”. It provides guidance to the individual making medical decisions about what you would want to certain situations. For instance, under what circumstances would you want to be kept alive with a ventilator or a feeding tube.
  3.  Trust – A living trust allows you to pass on assets without going through the public probate process and allows someone else to manage your assets if you become incapacitated. You are your own trustee, but you can also appoint a successor trustee to take over if needed.
  4.  Administrator – The individual who is charged with disposing of a deceased’s estate if that person died without a will.
  5.  Estate Taxes – These are taxes that the government levies in the process of property transferred after death
  6.  Executor – The Individual who ensures that the estate is disposed of according to the decedent’s wishes. When you create a will, an individual will need to choose someone to carry out their wishes. Most of the time, an estate can be handled by a friend or relative with the help of an estate lawyer.

What is a living will and why is it necessary? Attorney Aubrey Harry Ducker Jr. shares his knowledge of elder law.

Probate Administration

The process of probate begins by filing a will in probate court. If there are no disputes or objectification to the will, the named executor or personal representative will pay the debts of the estate and distribute leftover assets to any beneficiaries. Probate can take up between 3-8% of the total assets left behind in a will (excluding taxes). An experienced attorney will help to reduce of costs of probate in court. An attorney who specializes in probate administration can help resolve disputes or conflicts that may arise during the process.

Should I add my family member’s names on my assets and avoid a will? Attorney Aubrey Harry Ducker Jr. offers his perspective.

Accounts for Managing Assets

Having an account is beneficial for managing assets and it’s recommended that you open an account in the name of an estate or trust. A basic checking account can be enough to get you through the probate process. If the trust has to be managed over the long term, it is recommended that an account is set up to handle both investments and cash. This account will contain all the fund’s from the decedent’s bank accounts and income created by estate assets.
Managing A Decedent’s Assets

  1.  Home or Vacation Home – when managing a decedent’s real estate, it is advised that security measures are taken to protect the property if it is vacant. You will also need to keep up with maintenance, home owner’s insurance, and mortgage payments
  2.  Vehicles – the decedent’s vehicles must be managed including loan payments and handling regular maintenance.
  3.  Money and Investments – When a bank account is opened for the estate, any of the existing decedent’s bank accounts should be closed and the remainder of the funds should be transferred to the new account. Any stray cash should be placed in a sealed envelope and placed in a safe place.

Spending Down Assets

In order to apply for coverage, Medicaid has strict rules that require applicants to “spend down” their assets before they qualify for coverage. Individuals must be conscientious of what they spend money on. To be eligible for Medicaid, applicants must have no more than $2000 “countable assets”. A Medicaid applicant is able to spend money on the following:

  1. Prepaying funeral expenses
  2. Making repairs to a home
  3. Paying off a mortgage, car loan, or credit card debts
  4.  Pay for medical care and equipment
  5.  Pay for more care at home

What are some permissible ways to spend down my assets? In Medicaid planning, “spending down” assets are important. Working With An Attorney On Managing Estate Assets Estate planning is a serious business. One wrong word or missing signature can the intent and power of a will or trust.

An Attorney who specializes in probate or estate planning can assist in sorting out complex legal documents or matters. Your attorney can also sort out any family conflicts or objectification that may arise. Most importantly, estate planning attorneys understand the state law, which dictates estate plans. If you or a loved one are not familiar with Florida state laws, it could be difficult to navigate on your own.

Orlando Estate Law Attorney Aubrey Harry Ducker Jr.

We understand how simple estate planning mistakes or omissions can quickly turn into a disaster, resulting in litigation or probate. Aiming to help our clients avoid common estate planning errors. Thus protecting their assets. Affecting the efficient transfer of assets to the intended beneficiaries.

If you are dealing with any type of family law case, contact Attorney Aubrey Harry Ducker Jr. to discuss how our attorneys can help you with your Trust Administration & Litigation, Probate Administration & Litigation, and Collaborative Divorce case. Call us at (407) 647-7887 or send us a message. Also, you can visit the offices of Attorney Aubrey Ducker Jr. Aubrey Ducker Jr. serves Orlando and surrounding areas.

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Alimony Issues During the COVID-19 Crisis

So far, COVID-19 has had a profound impact on a wide range of legal matters. Life and circumstances have changed for many different people while quarantining and social distancing. COVID-19 has also had an impact on employment in America. As a result, many Americans are grappling with the financial issues from the pandemic. Attorney Aubrey Harry Ducker Jr., along with attorneys at CPLS are going to examine alimony issues during the COVID-19 crisis.

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Family Law: Child custody and divorce law tips.

Family Law: Child custody and divorce law tips.

What does a family lawyer do?

Child custody and divorce law: Family law deals with issues that are family-related and issues of domestic relations. Most family law practices focus on representing clients within a divorce and the issues related to divorces such as the division of marital property, child custody and support, and alimony.

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Do You Need A Probate Attorney In Orlando?

Do You Need A Probate Attorney In Orlando?

When a loved one passes away, it is an emotional process for everyone involved. Then, there is the issue of how their assets and will are managed after their death. A probate attorney in Orlando will be able to navigate issues with wills and resolve issues with family members.

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Commonly asked questions on Probate Litigation

Commonly asked questions on Probate Litigation

What Are Probate And Administrative Litigation, How Can It Help You

Probate Litigation is a process that deals with the estate of a loved one who has passed away. It is not the easiest thing in the world. This process can seem very tiring and overwhelming. So, in this blog, we will help you get a few of your questions answered. When residents or property owners pass away, their death sets into motion a legal process known as probate. Through probate, a deceased person’s assets are distributed to the heirs of his or her estate under court supervision. Probate also involves paying a decedent’s outstanding taxes and debts.

Types Of Probate

First off, its best to know everything about the situation at hand. There are multiple types of probate. Depending on certain circumstances, the Probate process can be simple and easy or can be exceptionally long.

The probate process can be differentiated in the following ways:

Probate vs. non-probate assets: Only those assets that were solely owned by the decedent at the time of death must go through Florida probate administration. Any assets that are jointly owned or have a designated beneficiary are not subject to probate administration.

Summary vs. formal administration: When an estate is worth $75,000 or less, or the decedent has been dead for more than 2 years, the estate will qualify for abbreviated probate known as summary administration. The estates that don’t qualify for summary administration undergo regular probate or formal administration.

Domiciliary probate vs. ancillary probate: Domiciliary probate is the probate of assets that are in Florida and owned by a decedent who was a Florida resident. Ancillary probate is probate of assets that are in Florida but owned by a decedent who was not a Florida resident.

A simple estate with a clear, uncontested can go through the probate process in just a matter of a few weeks. But there are multiple issues that can complicate probates. These include the lack of a will, a challenge to the will’s validity or meaning, creditor claims, or a surviving spouse’s rights.

What Are The Rights Of Surviving Spouses?

Surviving spouses are normally entitled to a share of their deceased spouse’s estate. Even if he or she is not explicitly provided for in the will.

A spouse may be disinherited if the will was made prior to the couple marrying. However, as long as the will was made while the couple was married, the surviving spouse may receive:

  • An elective share (usually 30%) of the decedent’s estate
  • A life interest in the couple’s primary residence
  • A family allowance up to $18,000
  • Surviving spouses who do not receive their fair Florida Elective Share should consult a probate lawyer.

How Does Probate Work?

Probate begins when the person named in the will as estate administrator presents the will to the probate court. If there is no will, the court appoints someone as an estate administrator, typically the decedent’s spouse or adult child.

Once the will is admitted to probate, the personal representative takes an inventory of estate assets. These include property, stocks and bonds, and business interests. Then, they place them in an estate account. The representative also notifies creditors of the estate and beneficiaries who may inherit estate assets.

Legitimate creditor claims and other estate bills, such as funeral expenses and taxes, are paid from the estate. If the representative thinks certain creditor claims are not legitimate, those claims can be disputed.

After the estate’s debt obligations are satisfied, remaining assets are distributed to beneficiaries according to the decedent’s will. What if there is no will? Florida law determines how assets are passed on.

Does Having A Will Avoid Probate?

In a Will, the deceased person selects a person known as the Executor or Personal Representative to handle their matters after they die. A Will also can include specific devices (the left of an item to someone) of miscellaneous assets, make special requests for the handling of minors, animals, and/or those with special needs.

How Long Does The Probate Process Last?

The length of time a ‘Probate’ will take depends on the number of assets and debts in the Estate. Also, the time can vary based on whether there is a Will, whether the beneficiaries can be easily located and whether there will be any dispute as to the validity of the Will or disagreements about the distributions. There are three types of administrations (Disposition without Administration, Summary Administration, and Full Administration). The type of administration depends on the size/value of the Estate, whether the deceased person had any debts and how long it has been since the person passed away.

What are the Rights of Surviving Spouses?

Surviving spouses in Florida are typically entitled to a share of their deceased spouse’s estate—even if he or she is not explicitly provided for in the will. A spouse may be disinherited if the will was made prior to the couple marrying, but as long as the will was made while the couple was married, the surviving spouse may receive:

  • An elective share (usually 30%) of the decedent’s estate
  • A life interest in the couple’s primary residence
  • A family allowance up to $18,000
  • Surviving spouses who do not receive their fair Florida Elective Share should consult a probate lawyer.

Types of Probate

The probate process can be differentiated in the following ways:

Probate vs. non-probate assets: Only those assets that were solely owned by the decedent at the time of death must go through Florida probate administration. Any assets that are jointly owned or have a designated beneficiary are not subject to probate administration.

Summary vs. formal administration: When an estate is worth $75,000 or less, or the decedent has been dead for more than 2 years, the Florida estate qualifies for abbreviated probate known as summary administration. Florida estates that do not qualify for summary administration undergo regular probate or formal administration.

Domiciliary probate vs. ancillary probate: Domiciliary probate is the probate of assets that are in Florida and owned by a decedent who was a Florida resident. Ancillary probate is the probate of assets that are in Florida but owned by a decedent who was not a Florida resident.

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How Court Filings and Hearings Have Been Affected By the Coronavirus in Florida

How Court Filings and Hearings Have Been Affected
By the Coronavirus in Florida

Court filings and hearings have been affected by the coronavirus in Florida and social distancing is not making anything any easier. Social distancing is the norm these days, and there is little indication that that is going to change any time soon. Some states have been slower than others in implementing social distancing concepts to their court procedures but most have eliminated all but essential in-person appearances and filings in favor of telephonic and video appearances and electronic filings. However, Florida is no different. This article will set forth what attorneys and their clients can expect in the State of Florida during the COVID-19 pandemic.

What is Social Distancing?

Social distancing is the actions one takes to limit face-to-face contact and slow the spread of the highly-contagious coronavirus. One recommended social distancing action is to keep at least 6 feet away from others. As of this writing (April 17, 2020), the federal government has mandated that social distancing be practiced at least until April 30. Although, this deadline may be longer.

Is Florida Practiced Social Distancing?

Yes. On March 1, 2020, the State of Florida Surgeon General and State Health Officer declared a Public Health Emergency. On March 9, 2020, Governor Ron DeSantis declared a state of emergency for the entire State of Florida, directing interstate travelers to Florida to self-quarantine for 14 days or the duration of their trip, whichever was shorter. He also directed Floridians to limit their travel to essential travel and avoid groupings of 10 or more people, among other things.

How is the COVID-19 Pandemic Affecting Court Proceedings in
the State of Florida?

On April 6, 2020, Chief Justice Charles T. Canady issued an administrative order, AOSC20-23 to clarify and extend previously enacted temporary social distancing measures created by six previous orders, effective through May 29, 2020. These measures include:

● Suspending prohibitions on conducting court proceedings electronically or remotely;
● Suspending prohibitions on giving sworn testimony electronically or remotely;
● Providing for the administration of oaths via the audio-visual system;
● Suspending all grand jury and jury selection proceedings;
● Suspending criminal and civil jury trials;
● Restricting trial court proceedings to a limited number of “essential” proceedings;
● Suspending certain time periods in criminal procedure;
● Suspending speedy trial time periods in non-criminal traffic infraction proceedings;
● Suspending the issuance of writs of possession;
● Suspending the requirement that certain family law forms be notarized or also signed in the presence of a deputy clerk.

What are “Essential” Court Proceedings?

Chief Justice Canady deemed the following types of court proceedings “essential,” and these will continue to be held throughout the duration of the public health emergency, despite other restrictions:
● First appearance in a criminal trial;
● Criminal arraignments;
● Motion hearings to set or modify bail for individuals in custody;
● Juvenile dependency shelter hearings;
● Hearings on petitions for injunctions related to the safety of an individual;
● Hearings on petitions for risk protection orders;
● Hearings to appoint emergency temporary guardians;
● Hearings to determine whether an individual should be involuntarily committed under the Baker Act or the Marchman Act;
● Hearings on petitions for extraordinary writs, to protect constitutional rights.

Additionally, any proceeding related to violations of the rules and laws relative to restricting the spread of COVID-19 is also deemed “essential” and will be held. These proceedings include but are not limited to those related to:

● quarantine or isolation violations,
● violations of the order to limit travel,
● violations of the order to close public or private buildings, and
● enforcement of curfew.

The Chief Justice also charged the circuit and county chief judges to cancel any non-critical and non-essential court proceedings or events that cannot be held remotely or electronically for whatever reason. The court system’s COVID-19 emergency webpage has more information.

Additional Proceedings Could Be Essential

In sum, any court proceeding not deemed essential is suspended or postponed. However, because the Chief Justice did give each circuit and county chief judge discretion to deem other critical proceedings “essential” and hold them during this crisis. You or your attorney should check with the court in which your matter is being heard. Find out about the status of the case.

About the Author

Veronica Baxter is a legal assistant and blogger living and working in the great city of Philadelphia. She frequently works with Todd Mosser, Esq., a busy Philadelphia appeals attorney.

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