Wednesday, April 21, 2010

Understanding Probate and Wills in FL

What is probate? Probate is a legal process that moves assets of a deceased person (decedent) out of an estate and into the hands of family or friends. The probate process also ensures that creditors of an estate are paid from the estate assets.

Types of probate

Under Florida law, there are two types of probate:
  1. Formal administration: Required whenever the estate of the decedent is valued at more than $75,000, while excluding creditor exempt property such as a homestead exemption. The circuit court requires an accounting of all of the assets and debts of the decedent. As a result of the court’s involvement, formal administration may take longer than other options. However, the beneficiaries of an estate under formal administration are not liable for the debts of the estate. Before any distribution is made, all or substantially all of the creditors will have been paid.
  2. Summary administration: Generally available only in cases where the value of the estate is less than $75,000, while excluding creditor exempt property. Additionally, for summary administration to be available, creditors of the estate must agree to the administration or have been fully paid. Because this method is faster, it may seem to be ideal. However, an executor of any estate should consider that any beneficiary who receives assets is liable for any debts that haven’t been paid by the estate and this liability can last for up to 2 years. This means that although the estate may believe it has paid all of the creditors, within 2 years a beneficiary can be asked to pay a debt that the estate missed.
A third option of Disposition Without Administration is also available but would not be classified as probate in FL. This option exists where all property of the estate is considered to be exempt and the total value is not more than funeral expenses (capped at $6,000) plus the decedent’s medical bills for his or her last illness.

The final piece to the probate puzzle involves the type of property subject to probate. Property that is solely in the name of the decedent on the date of his or her death will be subject to probate. For example, a bank account that is in only the name of the decedent would be subject to probate. In the alternative, a bank account that is jointly owned by the decedent and someone else, will automatically transfer to that other person without having to go through the probate process. You need a skilled, experienced attorney to handle probate and wills in FL.

Thursday, April 8, 2010

Understanding the Difference between a Felony and a Misdemeanor

Laws in this country are set at the federal and state levels and are generally categorized as either felonies or misdemeanors. There are also infractions of the law that are not usually considered crimes, such as speeding, and ordinances against certain behavior set at the local level, such as curfews.

Whether a crime is considered a felony or a misdemeanor depends on the punishment possible for that crime in the state in which it occurred, or at the federal level in the case of crimes such as mail fraud, kidnapping, and counterfeiting.

In most states, misdemeanors are crimes for which the maximum sentence possible is less than a year of jail time. Those crimes for which the minimum sentence possible is imprisonment of a year or more are considered felonies. In states that have the death penalty, all crimes potentially punishable by death are considered felonies.

Most states also allow for some crimes to be processed as either felonies or misdemeanors, depending on the circumstances and any aggravating factors (such as cruelty shown in the commission of a crime). It would be ideal to reach out to a South Carolina trial attorney if you are from the state and need help.

Some key differences
Both misdemeanors and felonies are processed through the court system and allow you due process. That said, there are some key differences:

  • If you are charged with a federal felony, your case may first go before a grand jury to determine if the case against you is strong enough to go to trial
  • If you are convicted of a misdemeanor, the judge generally delivers the sentence at the conclusion of your trial
  • If you are convicted of a felony, you will be sentenced at a separate hearing
  • In the case of an appeal, a misdemeanor case will be held before a different appellate court than a felony
Differences in punishment are significant, and include:
  • People convicted of misdemeanor crimes generally serve sentences of less than one year and serve them in city, county, or state jails
  • People convicted of felonies generally serve sentences of more than one year and are incarcerated in state prisons
In some states, convicted felons can lose certain rights, including:
  • The right to possess firearms
  • The right to hold a hunting or even fishing license
  • The right to vote
Some rights to your privacy, including:
  • Requiring that the convicted disclose their status as felons on job applications
  • Requiring some felons, such as sex offenders, to register with the state when they leave prison and restricting where they can live (such as not near elementary schools)
  • Convicted felons may be subject to harsher punishment on subsequent convictions
In many cases, the legal and judicial systems have broad discretion in the charges they bring against the accused and in sentencing the convicted. If you are ever arrested, it is essential that you obtain a South Carolina criminal attorney as quickly as possible in order to ensure the best outcome possible for your case.