Probate Law

The vast majority of people have never heard the word “probate” before having to deal with the process personally due to the passing of a loved one. The probate process is simply the court proceeding required for transferring property which was owned by the decedent, to the identified beneficiaries of the decedent’s estate. The probate process is different in every state, but the typical steps involved include inventorying the estate assets, identifying and handling creditor claims, as well as eventually making distributions to the beneficiaries. Probate administration and estate administration refer to the same process. Any assets which are owned in the sole name of the decedent, which have no beneficiary designations, must fall into the decedent’s estate and the only way to transfer or sell estate assets, aka probate assets, is to initiate the appropriate court supervised probate process. Administration of the estate is conducted in the state and county in which the decedent died, or for non-residents of Florida, in the county in which the decedent owned real property.

What is Probate?

Legal Validation

Probate is the court process by which your Last Will and Testament will be legally validated after you die, assuming you leave one. However, most people understand probate to be the entire process of settling someone’s estate after they die. When there is a Will and/or trust which was executed by the decedent prior to death, the estate is referred to as “testate.” When there is no Will or estate planning documents to dictate to whom estate assets are to be distributed, the estate is referred to as “intestate.” Every state has their own version of an intestacy statute, which stipulate the default rules for how a person’s property is to be distributed.

3 General Rules

There are three general stages of probate:

  1. Validating the Last Will and Testament, or stipulating that there is no Will, and appointing a personal representative (aka referred to as an “executor” in other states);
  2. Inventorying all of your assets, identifying and settling debts; and
  3. Disbursing the remaining assets to the identified beneficiaries or heirs in accordance with the Last Will and Testament, or with the Florida intestacy statute.

Asset Transfer and Identification

Asset Transfer

How an individual’s assets are transferred to their heirs after they die is a pivotal issue in estate planning and probate administration that most people don’t quite understand. One of the biggest misconceptions regarding asset transfer is that most people assume if your Last Will and Testament says that your assets are to be transferred in a particular way, then all your asset will actually be transferred in that way. However, this is not always the case.
Good estate planning requires you to understand that the way an asset will be transferred when you die will first and foremost be determined by the way in which it is titled at the time of your death. Thus, for your estate plan to work the way you want, it is extremely important that title to your asset be aligned with your ultimate estate planning objectives.

The first step in the probate process is locating or identifying any assets associated with the decedent, and the second step is to determine how those assets are titled in order to ascertain how they are to be distributed.

Assets will fall into distinct categories depending on how they are titled as follows:

Creditor Claims

After the death of a loved one, family members are usually dealing with a lot of emotions. During this time it’s easy for them to forget about, or to be overwhelmed by, the process of settling the deceased’s estate, especially if there are number of potential creditors or debts that may be looming. This is where working with an experienced and knowledgeable probate attorney can help.

The Florida Probate Firm has handled many estates which have been burdened with numerous creditor claims, as well as estates that are considered insolvent, meaning that the liabilities of the estate exceed the available assets. We work with families to preserve as much wealth as possible, and to ensure that the expenses of the administration are funded by estate assets rather being paid out of pocket by beneficiaries, whenever possible.

There are a number of options available to protect assets from potential creditors such asHomestead determination for real property;

Trust Administration

Similarly, trust administration is the management of trust assets for the benefit of the trust beneficiaries and in accordance with the terms of the trust. Trust administration is usually carried out by an individual or entity referred to as the successor trustee, who was nominated by the trust settlor to assume management of the trust when the original trustee becomes incapacitated or dies.

FAQ's Surrounding Probate Law

What are some basic facts about Probate?

Probate may also be “domiciliary” or “ancillary.” Domiciliary probate administration is probate of assets owned by a Florida resident that has an actual situs in Florida. Ancillary probate administration is probate of assets owned by a decedent who is not a Florida resident that has an actual situs in Florida.

An example of when ancillary probate is required would be if a New York resident owns a condominium in their sole name that is located in the State of Florida. In order to open ancillary administration in Florida, probate needs to be opened in the state of the decedent’s residence regardless of whether there are assets subject to probate in that state.

Does Every Estate Require Probate?

Not all estates are required to go through probate. Probate administration only applies to probate assets, which are the assets that were owned by the decedent at the time of death. If the asset had a joint tenant with a survivorship interest or a designated beneficiary, such as a pay on death account or a designated beneficiary on a life insurance or retirement account, then the asset will not be subject to probate administration.

Why Is Probate Necessary for Certain Types of Assets?

If the decedent is the only person with an ownership interest in an asset, then after their death there is nobody who can dispose of those assets, which means probate is necessary to settle the matter. For example, if the decedent has a checking account with $50,000 in it and they are the only owner, and the account does not pay on death to anybody. Upon the decedent’s death, nobody would have the legal authority to sign the checks. The probate process exists to deal with these sole-named assets, whether they are bank accounts, stocks, real estate, etc.

What If the Decedent Did Not Have Any Probate Assets?

If a person dies without assets in their name, then probate is not necessary, and the Will will not have any effect on the distribution of their estate. This is often something that most people do not understand. For example, a father might make a will leaving his entire estate in equal shares to his three children but then add the child who lives nearby to the bank accounts “for convenience purposes.” Usually, this means that the account is made “joint” with that child and passes directly to that child outside of probate, thereby inadvertently cutting out the other two children the father clearly intended to benefit.

What Do Testate & Intestate Mean?

In Florida, the person who makes a Last Will & Testament is called a “testator” or “testatrix.” The term “testate” means that a decedent died with a valid Last Will & Testament. In Florida, the requirements for execution of a Will are outlined in Florida Statute §732.502. Every Will must be in writing and the testator must sign the Will at the end. The Will must be witnessed by two people who must also sign the Will in the presence of the testator and in the presence of each other. These are the minimum requirements that must be complied with for a Will to be valid in the State of Florida. If any of these formalities are not strictly followed, then the Will is invalid.

Who Oversees a Probate Estate?

Circuit court judges preside over probate proceedings in the state of Florida. A judge will appoint a personal representative, issue a ruling on the validity of a decedent’s Will, determine the rightful beneficiaries, and supervise the payment of valid creditor claims.

What Are Letters of Administration?

Once the judge has determined that a person or an institution is qualified to serve as the personal representative of a decedent’s estate, the judge will then sign Letters of Administration. This is a document that gives the court-appointed personal representative the legal authority to administer the decedent’s probate estate.

Who Is Qualified to Serve as a Personal Representative?

Though there are some limitations, Florida law states that “any person who is sui juris (meaning legally competent) and is a resident of Florida at the time of the death of the person whose estate is to be administered is qualified to act as personal representative in Florida” (Fla. Stat. §733.302). However, even if a person meets those requirements, they might be disqualified if they have been convicted of a felony, are mentally or physically unable to perform duties, or are under the age of 18. Conversely, a non-resident might be qualified if that person is a legally adopted child or adoptive parent of the decedent, related by blood to the decedent, or the spouse of one someone who meets one of those two criteria (Fla. Stat. §733.304).

Should a Personal Representative Be Represented by an Attorney?

Yes, the personal representative should be represented by an attorney. Even seemingly simple probates or small estates can have complicated legal issues arise that will be unfamiliar to a non-attorney.

How Are Creditor Claims Handled?

The personal representative must serve a document called a Notice to Creditors on all known or reasonably ascertainable creditors. Additionally, the personal representative must publish the Notice to Creditors in a local newspaper for a certain length of time. Creditors have a certain amount of time after being served or the notice being published to file a claim in the probate proceeding. The personal representative then has a duty to handle the claims. If there is a legitimate basis for objecting to the creditor's claim, then the personal representative may file an objection and the creditor will have to file an independent lawsuit in order to bring the claim.

The legitimate debts of the decedent must be paid before making distributions to the beneficiaries of the estate. The personal representative must file a report with the court if any claims are not being paid or disposed of properly. A personal representative is free to contact the creditors to negotiate the claims; however, the creditor has little incentive to do this if the estate has ample funds to satisfy the claim. Sometimes estates are insolvent, and creditors must accept less than they are owed. Certain creditors take priority over other creditors. For example, funeral expenses take priority over credit card debt.

How Long Is the Probate Process?

This is one of the most common questions we get. It’s a fair question to ask, but unfortunately, there’s no easy answer. Depending on the complexity (which has nothing to do with the size of the estate), it can take anywhere from six months to many years. In South Florida, where the courts are backlogged, the average time it takes to probate an estate is probably in the 6–18-month range.

Creating a Durable Power of Attorney

Planning for life’s unexpected events is an important part of probate planning. We all want to know that our needs and interests will be taken care of in the event we cannot do so ourselves, both for our own well being and for the well being of our loved ones. If you or a family member are considering whether to establish a Durable Power of Attorney, the attorneys at the Grantham Law Firm are here to assist you. We will guide you through the Durable Power of Attorney process and can help you determine whether this document is a good option for you, what the scope of delegation of authority might be, and who is best-suited to be an agent for you.

To schedule a free consultation to discuss your estate planning needs, call our West Palm Beach office at (561) 966-6211 or click the button below.

Get a free consult with our Probate Law Attorney

Estate Planning

Understanding Estate Planning

Good planning can reduce delays and stress, minimize taxes, and maximize the wealth your loved ones inherit. Whether you are planning in advance or facing an immediate crisis, we can help you devise a legal solution to protect you, your family, and your assets. We always welcome participation from family members and advisors you wish to involve in the planning process.

Estate planning means different things to different people. Some people come to us because they have recently bought a house, or inherited money and want to make sure it doesn’t fall into the wrong hands. Others are updating existing documents after a divorce or remarriage, while new parents may be creating an estate plan for the first time to protect their growing family.

Whatever your reason is for considering creating or updating your estate plan, our goal is to walk you through the process and give you useful information along the way. Estate planning addresses your major concerns for the future by putting legal documents in place to protect yourself, your family and your assets in the event you become incapacitated due to injury or illness or you die.A health care power of attorney can do the same thing for medical decisions. In addition, you can draw up a living will or an advanced health care directive to record your wishes about the medical care you want or don’t want to receive.

Estate planning is the process of planning in advance how your estate is to be managed in the event you are unable to do so yourself, as well as, how it is to be disposed of when you die. Having no estate planning documents in place means that your estate––the assets and financial wealth you have worked hard to accumulate––will be distributed by a probate court in accordance with the state’s intestacy law and you will have lost the ability to say which of your heirs should inherit what part of your estate.

What’s more, if you were to become incapacitated due to illness or injury, without the proper estate planning documents in place, your family will have to go to great lengths to gain the authority to manage your financial affairs and to make health care decisions for you during your period of incapacity.

Goals and Expectations for Estate Planning

Estate Planning Goals

Estate planning is an ongoing process that utilizes the creation of wills, trusts, powers of attorney, and beneficiary designations to achieve some or all of the following goals:

Estate planning allows you to prepare for a variety of potential circumstances, for example, a durable power of attorney will allow you to appoint someone you trust to assume control of your bank account, pay bills, and manage your finances when you can’t.

Wealth & Taxes

A health care power of attorney can do the same thing for medical decisions. In addition, you can draw up a living will or an advanced health care directive to record your wishes about the medical care you want or don’t want to receive.

Estate planning also uses Wills, trusts, and other instruments to transfer your property efficiently and effectively when you pass away. Good planning can reduce delays and stress, minimize taxes, and maximize the wealth your loved ones inherit. You can use a Will to determine who gets your property, but if you want to avoid probate, put conditions on the transfer of your assets, or if your estate is large enough to be subject to estate taxes, the use of one or more trusts may be a better option. Finally, estate planning allows you to protect vulnerable loved ones, for example, by naming a guardian to care for your minor children and by providing long-term wealth management for loved ones with special needs.

Whether you are planning in advance or facing an immediate crisis, we can help you devise a legal solution to protect you, your family and your assets. We always welcome participation from family members and advisors you wish to involve in the planning process.

Figuring Out Wills & Trusts

Wills

Perhaps most important to any Florida resident’s estate planning is the creation of a will. A will is central to ensuring that your wishes are followed with regard to your assets, as it outlines who will receive your property upon death. A will also allows you to name a personal representative (commonly referred to as an executor in other states) to administer your estate. Without a will, your belongings and estate will be subject to Florida laws during the probate process and may not be distributed as you would like. Similarly, a will can also be used to appoint a guardian for any minor children you may have. If you do not have a will, the court will be required to appoint a guardian without considering your instructions through the more laborious guardianship process.

In Florida, the creation of a will is still a very formal process and certain requirements must be met in order for your will to be recognized and accepted by a court. These include presenting the will in written form and making sure that it is witnessed and executed properly. In the case of self-proving wills, that it is notarized in the proper manner. Thus, if you already have a will, or are in the process of drafting one, it may be important to check with a Florida wills and trusts attorney to ensure that all the proper procedures have been followed and the will is valid. A will only becomes final upon death, so it may be changed or added to at any time during an individual’s life so long as they are legally competent to do so. This can be done by drafting a new will or by creating a “codicil,” which is an amendment to the original will. In either situation, the same requirements and formalities applied to the original will must be followed in order for the changes to be valid.

Florida Living Wills

Florida law provides for the creation of a living will, including suggesting the appropriate form and format for the document. In order for a living will to be effective, Florida law requires that it be signed in the presence of two witnesses, one of whom must be neither the spouse nor relative of the creator of the living will. If the creator of the living will is unable to sign it, he or she may direct a witness to sign it on his or her behalf.
Once the living will has been created, it is important to notify close family members and physicians of its existence, so that it can be referred to if needed. The living will does not become effective until you are mentally and physically incapacitated and a doctor has determined that there is a medical probability that any additional treatment you receive will only prolong your process of dying.

Trusts

In addition to writing a will, Florida residents may also wish to consider the use of trusts in their estate planning. Unlike a will, a trust does not become effective only at death, but can be established during one’s lifetime. The purpose of a trust is usually to hold assets for you, the “grantor/settlor” or for others you choose (the “beneficiaries”). The trust is then managed by one or more trustees who must ensure that it operates as the grantor has requested. A trust often allows an individual to have more control over how assets and funds are distributed to beneficiaries. For example, money can be allocated for a specific purpose, such as education, or in set monthly disbursements. As with wills, a trust must be properly set up and administered under the laws of Florida. If improperly created or incorrectly funded, a trust can be more burdensome than helpful to an estate. For this reason, it is important to consult a Florida attorney experienced in trusts if you are considering creating one.

Florida Living Trusts

The living trust, also known as a revocable trust, is created in order to better allow a person to manage assets during their lifetime and to instruct the distribution of assets after death. A “grantor” is the individual who sets up the trust, and the “trustee” is the individual who manages the trust. Typically, in setting up the trust, the grantor will establish instructions for how the trust may be utilized during his or her lifetime, as well as instruct the trustee on how the trust should be distributed once the grantor has passed away. Typically, the grantor has full access to the trust while alive and may withdraw from it as needed. If the grantor becomes incapacitated, the trustee may step in to make decisions on the grantor’s behalf. This may allow the grantor to avoid the appointment of a guardian.

Avoiding Probate

Because a living trust places the assets of the grantor into the management of a trustee, the assets in a living trust do not need to go through the probate process. Instead, upon the death of a grantor, the trustee will be in charge of handling the assets in the living trust, including paying any outstanding debts or taxes and then distributing the assets as instructed.

It is important to know that assets must be transferred to a living trust in a very specific way in order for a living trust to be effective and to avoid the probate process. All relevant assets, including any bank accounts, real estate, investments, or otherwise, must be formally and officially transferred to the living trust before the grantor’s death. This is called “funding” the trust. Funding a trust can be complicated because it can have an important effect on probate, inheritance, and taxes. If you are creating a living trust or are in the process of “funding” one, it is very important to consult with an estate planning attorney regarding your living trust options.

What Exactly is Power of Attorney?

Durable Power of Attorney

A Power of Attorney is a legal document that allows an individual to delegate certain responsibilities or authority to another individual. The creator of the Power of Attorney can delegate to an “agent” (aka “attorney-in-fact”) the right to take any number of actions on the creator’s behalf. The scope of a Power of Attorney can be very broad, encompassing all financial matters for example, or can be very limited, perhaps only dealing with a specific trust or completing one specific action.

There are several kinds of Power of Attorney, but most important in estate planning is the Durable Power of Attorney. Normally, a designated Power of Attorney is no longer effective when the creator becomes incapacitated. A Durable Power of Attorney, however, allows the document to remain effective even if incapacity arises. Additionally, any Durable Power of Attorney executed before Oct 1, 2011 may have what is called a “springing” power. This means that the Power of Attorney does not come into effect until the incapacity arises – it is for the specific purpose of use at the time of incapacity. A 2011 Florida law eliminated the option of springing powers in Durable Powers of Attorney, meaning that any new Durable Powers of Attorney will be effective as soon as they are signed by the creator.

A Durable Power of Attorney can only be signed by someone who is competent at the time of the signing, and who understands the effects that the document will have. Additionally, a Durable Power of Attorney may only delegate actions and responsibilities to an agent who is over 18 years of age and who is considered reliable and trustworthy.

Do's and Dont's of Delegation

Under a Durable Power of Attorney, an agent may perform any acts specified in the document and any acts “reasonably necessary to give effect to the specified acts.” Acts delegated to an agent may include:

Although the scope of possible actions is broad, there are certain acts that an agent cannot do, such as voting on behalf of a principal or create or revoke a will for the principal

Creating a Durable Power of Attorney

Planning for life’s unexpected events is an important part of estate planning. We all want to know that our needs and interests will be taken care of in the event we cannot do so ourselves, both for our own well being and for the well being of our loved ones. If you or a family member are considering whether to establish a Durable Power of Attorney, the attorneys at the Grantham Law Firm are here to assist you. We will guide you through the Durable Power of Attorney process and can help you determine whether this document is a good option for you, what the scope of delegation of authority might be, and who is best-suited to be an agent for you. To schedule a free consultation to discuss your estate planning needs, call our West Palm Beach office at (561) 966-6211 or click the button below.

Get a free consult from The Grantham Law Firm