Trustee Provide an Accounting

When Must the Trustee Provide Accounting?

trustee provide accounting to trustFundamental to trust law, a trustee is always under a duty to give information to a beneficiary. So when must the trustee provide accounting? Most states have enacted statutes specifically dealing with this duty to account. 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.

Calendar for trustee provide accountingMany 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.

When must the trustee provide accounting? In my opinion, a reasonable amount of time would approximately 90 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.

Trustee provide accounting art courtIf the accounting is not forthcoming a beneficiary can compel the accounting by filing a lawsuit for an accounting. I strongly urge trust beneficiaries to be vigilant in monitoring the trustee and making sure a timely accounting is provided.

To schedule an appointment with Jay Fleece:  

Phone: 727-471-5868   jfleece@legacyprotectionlawyers.com  

Personal Representative Compensation

Personal Representative Compensation


personal representative compensation, attorney fees, and other professionals whose services ARE required in administering the probate estate – are entitled by law to reasonable compensation.

Personal RepresentativePersonal representative compensation is usually determined in one of these five ways:

1. As set forth in the will; 

2. As set forth in a contract between the personal representative and the decedent;

3. As agreed among the personal representative and the persons who will bear the impact of the personal representative’s compensation;

4. The amount presumed to be reasonable as calculated under Florida law, if the amount is not objected to by any of the beneficiaries; or 

5. As determined by the judge

Personal Representative CompensationA Personal Representative Must Be Appointed by a Judge Before He or She Can Serve.

If the decedent’s will designated a personal representative, the judge will decide if that person is qualified to serve. A circuit court judge supervises or presides over probate administration and also rules on the validity of the decedent’s will. If the decedent died without a will, the judge will consider evidence to confirm the identities of the decedent’s heirs as those who will receive the decedent’s probate estate.

If the designated personal representative meets the statutory qualifications, the judge will issue “Letters of Administration,” also referred to simply as “letters.” These “letters” are important evidence of the personal representative’s authority to administer the decedent’s probate estate.

The judge will hold a hearing, as necessary, to answer any questions or to resolve disputes that arise during the course of administering the decedent’s probate estate. The judge’s decision will be set forth in a written direction called an “order.”

To schedule an appointment with Jay Fleece:  

Phone: 727-471-5868   jfleece@legacyprotectionlawyers.com  

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.

Wills and probate

Lost or Destroyed Will? It can be contested in probate court.

Lost or Destroyed Willwill cannot dispose of any of the decedent’s property until it is admitted to probate.

Lost or destroyed will? In order for a will to be admitted to probate, it must be executed in accordance with the formalities required by Florida law. The testator must sign his will at the end in the presence of two attesting witnesses. The attesting witnesses must sign in the presence of each other and in the presence of the testator. If the testator attaches a self-proof of will, the will may be admitted to probate without further proof. Without a self-proof of will, an oath of one of the attesting witnesses may be required before the will is admitted to probate.

Lost or Destroyed WillUpon the testator’s death, if a will, executed by the testator and kept in their possession, cannot be found, there is a presumption, absent other evidence, that it was destroyed with the intention of revoking it. However, this presumption may be overcome and the will may be admitted to probate if an interested person is able to establish the full and precise terms of the lost or destroyed will. The content of the lost or destroyed will be proven with a correct copy of the will and the testimony of one disinterested witness. Without a correct copy, the content may be established through the testimony of two disinterested witnesses.

TO SCHEDULE AN APPOINTMENT WITH JAY FLEECE:  

PHONE: 727-471-5868   JFLEECE@LEGACYPROTECTIONLAWYERS.COM  

IRS and Estate Taxes

The IRS, Estate Taxes and Personal Representative

IRS and estate taxesA personal representative has the responsibility to pay estate taxes owed by the decedent or the estate to the IRS.

Estate taxes are normally paid from probate assets in the decedent’s estate, and not by the personal representative from his or her own assets. However, under certain circumstances, the personal representative may be personally liable for taxes due to the IRS  if they are not properly paid.

Estate taxes and the IRSThe estate will not have any tax filing or payment obligations to the State of Florida. However, if the decedent owed Florida intangibles taxes for any year prior to the repeal of the intangibles tax as of January 1, 2007, the personal representative must pay those taxes to the Florida Department of Revenue.

The decedent’s death has two significant tax consequences. It ends the decedent’s last tax year for purposes of filing the decedent’s federal income tax return, and it establishes a new tax entity, the “estate.”

The personal representative may be required to file one or more of the following returns, depending upon the circumstances:

The decedent’s final Form 1040, Federal Income Tax Return, reporting the decedent’s income for the year of the decedent’s death.

  • IRS estate taxesOne or more Forms 1041, Federal Income Tax Returns for the Estate, reporting the estate’s taxable income.
  • Form 709, Federal Gift Tax Return(s), reporting gifts made by the decedent prior to death.
  • Form 706, Federal Estate Tax Return, reporting the decedent’s gross estate, depending upon the value of the gross estate.

The personal representative may also be required to file other returns not specifically mentioned here. 

To schedule an appointment with Jay Fleece:  

Phone: 727-471-5868   jfleece@legacyprotectionlawyers.com  

Probate and Trust litigation

Probate Assets: Real estate, Insurance, Annuities …

Are Real Estate, Insurance Policies and IRA’s Probate Assets?

Probate administration of assetsProbate administration only applies to probate assets. A probate asset is assets that the decedent owned in his or her sole name at death. Probate assets also were owned by the decedent and one or more co-owners – and lacked a provision for automatic succession of ownership at death.

Some types of probate assets:

real estate probate assetsReal estate titled in the sole name of the decedent, or in the name of the decedent and another person as tenants in common, is a probate asset (unless it is homestead property). Real estate titled in the name of the decedent and one or more other persons as joint tenants with rights of survivorship is not a probate asset.

Property owned by husband and wife as tenants by the entirety is not a probate asset on the death of the first spouse to die but goes automatically to the surviving spouse.

Probate assets Life InsuranceLife insurance policy, annuity contract or individual retirement account that is payable to a specific beneficiary is not a probate asset. A life insurance policy, annuity contract or individual retirement account payable to the decedent’s estate is.

Probate assets bank account and investmentsBank accounts or investment accounts in the sole name of a decedent is a probate asset. A bank account or investment account owned by the decedent and payable on death or transferable on death to another, or held jointly with rights of survivorship with another, is not a probate asset.

This list is not exclusive but is intended to be illustrative.

TO SCHEDULE AN APPOINTMENT WITH JAY FLEECE:

PHONE: 727-471-5868   JFLEECE@LEGACYPROTECTIONLAWYERS.COm

The information above 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.