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FAQ

How soon should I meet with a lawyer after my loved one dies?

Ideally, you should meet with an estates and trust attorney within two weeks of your loved one’s passing, but definitely within a month. The sooner you seek legal counsel, the more likely the administration of the estate will go smoothly. 

How often should I update my estate planning documents?

You should visit your estate planning lawyers whenever you wish to change something substantive in your estate plan, you have a major life event like marriage, if there is a change in the tax laws, or your estate planning counsel asks you to come in. Otherwise, you should review your estate plan with your estate planning attorney at least once every five years to ensure that your plan is meeting your personal and professional objectives. 

If I am named as the personal representative of an estate, am I personally liable for claims of the decedent’s creditors?

People are often worried that they risk their own assets if they act as a personal representative. You will not be personally liable to creditors unless you received money from the estate preferentially, meaning that you were paid to the potential detriment of those creditors. Please note that preferential payments do not include fees and expenses incurred in administering the estate. 

How many death certificates should I obtain? Does the death certificate need to identify the cause of death?

The number of death certificates you need will depend on the number of financial accounts you need to close, insurance claims you need to make, and any other matters that will require you to prove the decedent’s death. To further complicate matters, some institutions, such as banks and investment firms, may require you to produce the original death certificate but keep a copy for their files. Pensions and life insurance companies often require that you submit an original to them.  As a result, the number of death certificates you need can vary widely, but obtaining enough to cover the financial accounts and insurance policies plus three to five extra is a good place to start. You should only obtain death certificates identifying “cause of death” in order to  claim life insurance benefits.

My will was drafted in another state. Will it be invalid under Florida law?

Florida law considers any will valid if it is valid under the laws of the state where it was executed, with the exception of wills that were hand-written by the deceased and oral wills. Even though your will is considered valid, Florida law could affect the way it is interpreted and administered. If you have an estate plan that was drafted out of state, you should have it reviewed by a licensed Florida attorney to ensure that it complies with Florida law and will accomplish your estate planning goals. 

How is an LLC taxed?

An LLC makes an election at the beginning of its existence to be taxed as either a C Corporation, an S Corporation, a disregarded entity or a partnership for federal tax purposes. If no election is made then the default choice is a Partnership.

Which assets are exempt from creditors in Florida?

Under Florida law, there are six assets that cannot be attached by creditors: 

  1. The homestead property – up to a half acre in a city or town and up to 160 acres in the country, and any “improvements” such as your home or other buildings
  2. Qualified retirement plans and IRAs
  3. Life insurance benefits
  4. Annuities
  5. Wages (with a number of caveats)
  6. Property owned as “tenants by the entirety” i.e. property owned by spouses.

What is the difference between property owned as Tenants by the Entirety and Tenants in Common?

Only spouses can own property as Tenants by the Entirety. Upon the death of one of the owners, the property passes to the surviving owner. In a Tenancy in Common, the deceased owner’s share generally passes as designated in the deed or according to the deceased owner’s  estate planning documents.

What is the amount of the Unified Credit against Gift and Estate Tax?

Upon death, estates are subject to taxation as it passes to your heirs. Previously, estates valued at $5 million or more were subject to the estate tax. However, the tax laws were recently amended and the unified tax credit was raised to estates worth $11.5 million or more. As a result, your estate may pass tax free if it is worth less than $11.5 million. 

How much can you give away each year without filing a gift tax return?

Under present law, there is a $15,000 gift tax exclusion per person per gift, which means that you can make several gifts to different persons or entities of $15,000 or less tax-free. For example, you can make a $15,000 gift to your son and another $15,000 gift to your daughter without paying a tax penalty. If you are married, your spouse also qualifies for the exclusion.  .

Have Additional Questions? Contact Comiter, Singer, Baseman & Braun

Contact the legal team at Comiter, Singer, Baseman & Braun either online or by calling us at 561-626-2101 or toll free at 800-226-1484 to discuss how our Florida and Palm Beach County estate planning attorneys can help you and your family.

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