The State of Florida recently released its annual statistical report on probate caseloads for the past year. The report goes a long way in explaining just why it's so often a painfully slow process to resolve a probate case.
Wording in a will or trust which allows a named person to decide where your property and money should go after your death (instead of you making that decision ahead of time) is called “precatory” language. An example is the recent Florida case of Cody v. Cody, where Earler Martin’s will left his home, and the rest of his estate, to one of his three stepsons, “to divide between [himself and his brothers], as he sees fit and proper.” Earler’s wish was probably that the inheriting stepson, Buford, divide up the home and other property equally between himself and his brothers. However, the words he chose to express that desire defeated that intent.
Hopefully our faithful readers all know by now that there are many hazards to do-it-yourself estate plans. What you may not know is that trying to administer your loved one’s estate without legal help is just as treacherous. It is a great honor to be named as a loved one’s personal representative (executor) or trustee, but these roles come with great responsibility and many legal duties.
We recently had a client inquire about challenging his stepmother’s will. Our first thought, and perhaps yours, was that the desire to challenge came from a history of animosity between the client and his stepparent, something we see all too frequently. However, in this case, the client was actually fond of his stepmother – that is, until she died with a will that left all of his father’s assets, including the family home, to her children.
So, it appears that we did not go off the first “Fiscal Cliff” and some momentary “permanence” has been given to the Estate Tax Law. In the just passed “American Taxpayer Relief of 2012,” Congress kept in place the 2010 estate tax law with its Five Million Dollar ($5,000,000.00) personal exemption, adjusted annually for inflation. The only thing the lawmakers actually changed is the gift and estate tax rate, which has gone up to a top rate of forty percent (40%) from a previous maximum of thirty-five percent (35%). The exemption amount in 2012 was 5.12 million dollars, per person. The 2013 exemption amount is reported to be 5.22 million dollars per person. This amount of money either can be given away during lifetime or after death; it also can be given or devised to grandchildren without occurring any additional generation skipping tax.
As a Jacksonville, Florida Probate Lawyer, I have been involved in a probate dispute among six siblings. This probate litigation is located in Duval County, Florida. A mother died and left her estate to be divided among her six children. The tangible personal property was to be divided equally among the six children. However, the mother specifically stated that one of the children could continue to live in her home, but that the living arrangements would be subject to an agreement among all of her children. This has made for quite a probate dispute.