FREQUENTLY ASKED QUESTIONS
The word probate means to prove. Probate court is where certain matters pertaining to a deceased person’s estate are proved in a judicial proceeding. In order to make sure the person’s wishes are honored, the court reviews the will and confirms the request. Our lawyers can help you navigate the Probate process to ensure a smooth proceeding.
A Will or Trust are documents that allow for the transfer of assets at death. It is important to discuss with your attorney the nature of your assets to determine the best plan for you. We believe that the recommended documents will depend upon your specific assets, family situation, and estate planning goals. Each client’s plan will be unique.
Florida Statutes require any Personal Representative or Guardian to be represented by an attorney, but it is important for any fiduciary to receive legal advice before taking action.
A living will is a type of advance health care directive. A living will is effective during your lifetime. The purpose of a living will is to ensure that your wishes with regard to your medical care are carried out, even when you are incapacitated. A living will allows a person to provide specific advance instructions about critical issues such as whether to administer life-prolonging treatment if the patient is terminal or in a persistent vegetative state. A health care surrogate may also be designated as part of the living will. Designation of a health care surrogate ensures that medical decisions will be placed in the hands of someone you trust and who understands your wishes.
The best way to ensure your family is cared for and your assets are distributed in the manner you desire is to meet with an attorney to discuss a customized plan. We believe that each client is unique, so their plan will depend on their specific needs. We will take the time to figure out what will work best for you. Most plans are simple and affordable. However, there are times that a more complicated plan is necessary to accomplish your goals. A little planning goes a long way to avoid future problems. At Everist Tillman, we believe that estate planning can be convenient and reasonable priced. We embrace traditional notions of estate planning, however, with a modern approach. We offer flexible hours and use of technology to make planning easier and more convenient. Let us know your needs and we can accommodate.
In Florida, we have a very beneficial homestead law. Homestead gives you a break on your property taxes. It is protected from the owner’s creditors during lifetime and it is protected from the owner’s creditor claims at death. These are important financial benefits to owners and heirs. However, these are only available if you treat you homestead correctly. We will discuss with you how to ensure these benefits are available to you during your lifetime and to your heirs at death.
A power of attorney is a legal document you can use to give someone else the authority to take specific actions on your behalf, such as managing your money or selling real estate for you. If a power of attorney is durable, it remains valid and in effect even if you become incapacitated and unable to make decisions for yourself.
There are two kinds of durable powers of attorney: a durable power of attorney for finances and a durable power of attorney for health. Both let someone manage your affairs if you become incapacitated. Our lawyers can help you prepare these two documents, along with a health care directive (living will), that defines what you would like for medical care. This allows you to choose the people you trust to make critical decisions in time of need.
When a loved one dies the emotional upheaval is tremendous. Dealing with the complications of the transfer of their assets while mourning is many times overwhelming. We can make this process easier. The administration of an estate or trust is a process that allows for the distribution of the decedent’s assets to beneficiaries and creditors. We represent fiduciaries like Personal Representatives and Trustees to ensure they fulfill their fiduciary duties to the estate or trust. We assist these fiduciaries to accomplish this role efficiently and professionally. We also represent beneficiaries of estates or trusts that have questions about the process. Many times when good planning is completed prior to death very little administration is necessary or a simple process may be employed. However, we are equipped to handle complex estates or trusts or those instances where no planning complicates the administration.
Probate is a court-supervised process for identifying and gathering the assets of a deceased person (decedent), paying the decedent’s debts, and distributing the decedent’s assets to his or her beneficiaries. The Florida Probate Code is found in Chapters 731 through 735 of the Florida Statutes, and the rules governing Florida probate proceedings are found in the Florida Probate Rules, Part I and Part II (Rules 5.010-5.530).
There are two types of probate administration under Florida law: formal administration and summary administration. There is also a non-court supervised administration proceeding called “Disposition of Personal Property Without Administration.” This type of administration only applies in limited circumstances. Probate administration only applies to probate assets. Probate assets are those assets that the decedent owned in his or her sole name at death, or that were owned by the decedent and one or more co-owners and lacked a provision for automatic succession of ownership at death.
Probate assets include, but are not limited to, the following:
- A bank account or investment account in the sole name of a decedent.
- A life insurance policy, annuity contract, or individual retirement account payable to the decedent’s estate.
- Real 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).
Probate is necessary to pass ownership of the decedent’s probate assets to the decedent’s beneficiaries, if the decedent did not have a will. Probate is also necessary to complete the decedent’s financial affairs after his or her death. Administration of the decedent’s estate ensures that the decedent’s creditors are paid if certain procedures are correctly followed.
Probate proceedings are filed with the clerk of the circuit court, usually in the county in which the decedent lived at the time of his or her death. A filing fee is required and should be paid to the clerk. After you file for probate, the clerk then assigns a file number and maintains an ongoing record of all papers filed with the clerk for the administration of the decedent’s probate estate.
Unfortunately, there is sometimes a disagreement over the transfer of a decedent’s assets and the beneficiaries of those assets. When this occurs, it is important to consult with an attorney about your rights. We represent clients in Will or Trust contests based upon lack of capacity or undue influence of the decedent prior to death. We also represent clients who wish to challenge the conduct of a power of attorney, personal representative, or trustee that is not appropriately communicating with beneficiaries or are not fulfilling their fiduciary duties. Sometimes, a fiduciary needs representation when a contest is unjustified or can be explained. Sometimes a document, Will or Trust, is not clear in direction. In these instances, a Court can be called upon to interpret ambiguous documents. Our attorneys can help when heirs have questions or when the process is unclear.