Family and Estate Planning

• Probate
• Guardianship
• Wills & Trusts
• Durable Power of Attorney
• Living Wills
• Estate Planning

What is probate?

The probate process is primarily a method of changing title from a deceased person to the person or persons who inherit the deceased person’s property. Some assets require probate, such as real estate and bank accounts that were held only in the name of the deceased, while others do not, such as life insurance policies or retirement plans payable directly to named beneficiaries. If a person passes away with assets in his/her sole name, then an estate must be opened in order to transfer these assets to beneficiaries. An estate will be opened with the Probate Court in the county in which the person passed away. Usually, a surviving spouse or the person’s children file a Petition For Administration with the Court, and the Court then issues Letters of Administration appointing a Personal Representative or multiple Personal Representatives.

Next, a Notice to Creditors must be published in a local newspaper. The Notice is designed to notify creditors who may have claims against the estate. After all creditors are properly satisfied and all of the estate assets have been properly distributed to the beneficiaries, the Court issues an Order of Discharge, which closes the case. The administration of an estate typically takes between 6 months and several years, depending on the complexity of the estate.

Can probate be avoided?

Yes, and there are a variety of ways to avoid it. We often assist people, even young people, in estate planning so their beneficiaries can avoid probate whenever possible. This means that it is wise to address your estate planning as early as possible.

What is the purpose of a Will?

A Will is designed to designate the beneficiaries of a person’s assets. A person must be 18 years old to create a will. If a person passes away without a will, then Florida law controls how his/her assets are distributed. Everyone who owns assets should have a will and makes these decisions for themselves. For example, a person may want all of his assets, but without a will, Florida law may not provide that 100% of the estate is transferred to her.


What is a “pour over” Will?

A “pour over” Will transfers any assets that you may own in your name alone at the time of your death to your revocable living trust. Your Will may not be needed at your death. If all of your property is either held in the revocable living trust or is held in the form of non-probate property, then your Will will not dispose of any property, and it can be disregarded.

What is a revocable living trust?

A revocable living trust is created while a person is alive and, simply put, is an ownership arrangement in which property is held in the name of a trust rather than in the name of the person who initially owns the property. People almost always create revocable living trusts for their own benefit, with the goals of avoiding probate, addressing the possibility of future incapacity, and keeping matters private. Normally, the person who creates a revocable living trust names himself or herself as trustee and as beneficiary. Upon that person's death, all or a portion of the property that remains in the revocable living trust passes according to the terms specified in the trust agreement.

Some benefits of a revocable living trust are:

Benefit #1:
No Probate of the trust property.

Benefit #2:
For estates that owe no Federal estate taxes, there is usually less work for the lawyers, which can translate into reduced estate administration costs and more assets for the beneficiaries. However, Court involvement is not entirely eliminated. Florida now requires the trustee of a revocable living trust to file a notice of the trust containing information about the person who created the trust and the trustee. Also, in certain circumstances, the trustee may be required to pay expenses of administering the decedent's estate as well as the claims of creditors against the decedent's estate.

Benefit #3:
Planning for future incapacity. A person may be worried that one day he will not be able to manage his own finances. To plan for this kind of problem, people often name someone to handle their affairs and this can be accomplished with either a power of attorney or a revocable living trust. A power of attorney will usually be accepted by banks, title companies and the like, but there is always the risk that an institution's legal department will reject it. The same person who may be denied the ability to use a power of attorney likely will be allowed to do anything he or she needs to do when acting as the trustee of a revocable living trust. Also, a revocable living trust may avoid a guardianship proceeding at the courthouse, and it could save a family considerable time and expense.

Benefit #4:
Harder to Challenge. If you are planning to disinherit one of your children or grandchildren, you may be better off with a revocable living trust because there is nothing filed at the courthouse. Also, it is more difficult to contest a revocable living trust than a will. Many people are interested in doing as much as possible to prevent a successful challenge to their estate plan and a revocable living trust is a great vehicle in this regard.

Benefit #5:
Avoid Out-of-state probate. If a person owns property in another state, he/she can avoid a costly probate proceeding in that state by transferring the property to a revocable living trust during his/her lifetime.

What is a Durable Power of Attorney?

A Durable Power of Attorney is a very powerful document designed to allow the designated person or persons to manage one’s financial affairs, such as the power to buy and sell real estate, open and close bank accounts, and sign tax returns. Each person that is chosen to act as an agent needs to be a person that is totally trustworthy. A Durable Power of Attorney may be effective immediately or it can become effective after medical professionals have determined that a person is incapacitated or unable to make decisions for himself/herself.

What are a Living Will and Designation of Health Care Surrogate?

We typically combine these two items into one document. A Combination Living Will and Designation of Health Care Surrogate allows the designated person or persons to consent to medical care on one’s behalf in the event of a catastrophic injury or mentally disability. The Combination Living Will and Designation of Health Care Surrogate is designed to become effective if a person is unable to make health care decisions and that fact is certified in writing by a physician.

The appointed agent may consent, refuse to consent, or withdraw consent to medical treatment and may make decisions about withdrawing or withholding life sustaining treatment. In the document, it is possible to direct the timing of when certain medical treatments will be suspended, which essentially allows people to make decisions for themselves when they are thinking clearly and capable of making good decisions.

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