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Orlando Probate & Estate Administration Law Blog

Breach of fiduciary responsibility must be handled properly

One of the duties that a person has when they're setting up their estate plan is naming a person to handle the estate after their death. The administrator of the estate has various things to do, including making sure that the bills for the estate are paid and that the assets are distributed in accordance with the decedent's wishes.

When a person places someone over their estate, they assume that the individual will do what they are supposed to do. They likely don't assume that there will be any issues with the person's conduct or how they handle the estate.

Why do siblings so commonly fight over inheritance?

The loss of a parent means that children go through a wide range of emotions. They will likely experience denial and disbelief, anger, blame, depression and guilt. These unsettling emotions can manifest themselves in different ways, meaning that in many circumstances, arguments break out between siblings.

While the heightened emotions of the grieving process can add to the likelihood of disputes, there are also some situations that make the probate process and gaining inheritance even more complex. The following are some specific reasons why siblings often fight over inheritance.

Can I exclude stepchildren from my will?

If you are a surviving spouse and you have stepchildren from that marriage, it is likely that your late spouse wanted your will to include them. During your spouse's lifetime, you may have even discussed setting up a trust in which all of your children and stepchildren are named as beneficiaries.

If you did not set up a trust in your spouse's lifetime, it's probably the case that you have complete control over what happens to your assets and the assets you inherited from your spouse at the end of their life. While it may have been expected of you to leave assets to your stepchildren, you may, for one reason or another, no longer want to. The following are things that you should consider in this scenario.

What does it mean to die intestate?

Most people die with some form of estate plan in place. They may have written a simple will, or they may have extensive estate plans in place that include several trusts. However, when a person dies without any form of estate plan in place, it means that they were never able to formally state their wishes during their lifetime. This is referred to under the law as dying intestate, or simply known as intestacy.

If your loved one has recently passed away without an estate plan, the assets that they left behind must be processed according to the laws of intestate succession. The following is an overview of key things that you should know if your loved one has recently died intestate.

What happens to my loved ones' assets when they die?

The days after a loved one's death are traumatic and can bring out a lot of emotions. Some aren't pleasant, but you'll still have to contend with them. One thing that you need to do is to think logically about the decisions you have to make in the upcoming days and weeks.

When a person passes away, their estate may need to go through the probate process. This is a court process that ensures the person's assets are distributed in accordance with their estate plan if there is one or the state's laws if there isn't an estate plan. Because of the requirement for probate, many estates are limited in what can be distributed prior to the conclusion of probate.

Is the estate you have to handle subject to estate taxes?

As the executor of an estate, you have a responsibility to the deceased party who named you as executor, the heirs and beneficiaries who will receive assets from the estate, and anyone with an outstanding debt owed by the deceased parties. In fact, failing to properly resolve someone's financial affairs is one of the riskiest mistakes an executor can make.

An executor has an obligation to resolve someone's outstanding financial issues during estate administration. If they fail to repay debts and instead distribute assets to beneficiaries with amounts still owed to private creditors or possibly taxing authorities, the executor could find themselves the focus of legal proceedings and financially responsible for those unpaid amounts.

Do you know the immediate steps to take after a loved one dies?

When a loved one dies, it's important that you take the right steps to protect their estate. Immediately, you'll need to obtain a legal pronouncement of death. For example, if you find that your mother has passed in her sleep, you should call 911 and have paramedics come to the scene. If your loved one had a do-not-resuscitate order, you should keep that on hand to make sure that paramedics don't have to start emergency procedures.

Not all paramedics are allowed to pronounce the death of a person. If they cannot, you should expect your loved one to be taken to a local emergency room. There, a doctor can make the declaration.

You can ask the courts to remove an executor from an estate

One of the most important decisions a person makes while planning their estate is choosing someone to serve as executor or administrator. Unfortunately, people creating an estate plan may not make the most rational decisions, as their emotional attachment to someone might lead them to overlook their flaws.

The person creating the estate plan wants to believe that their loved ones will uphold their legacy. Sadly, some people are too busy or not organized enough to handle an estate, while others are simply too unethical to handle assets and resources without trying to manipulate the situation for their own benefit.

What debts do executors need to pay off when someone dies?

For most people, estate planning largely consists of deciding whom they want to receive certain assets when they die. However, most households have complex financial circumstances that typically also include liabilities or debts, not just assets.

Whether you are the executor of an estate or an heir who should receive certain assets from the estate, you may worry about sizable debts left behind by the testator and what implication they may have for everyone else. What debts do people have an obligation to pay when settling an estate?

2 ways a special needs trust protects your loved one

Raising a child with special needs requires patience, love and planning. More so than with other children, a child with special needs will require support, possibly through their entire adult life. From help managing their finances to assistance in maintaining their own health through self-care, there may be many areas in which your child will require help as they grow older.

Unfortunately, when you die, that will mean that your child will lose the primary source of emotional and financial support upon which they have depended their entire life. Careful estate planning can help ensure that your child will have the resources they need even after you die.

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