Florida Estate Planning & Probate Video FAQs
What is your process?
My process is to listen as carefully as I can to the facts and circumstances which are being given to me by you, the client. Once I get that, then I process it with respect to my legal knowledge of 43 years, and then I try to help you with that problem.
What makes working with you different than other lawyers?
The difference with me is that I’m a human being and I know you’re a human being, and I need to try to help you as a fellow. Therefore, I am not doing anything but trying to learn what I can do to help you with your legal problem.
Why should I consider hiring you?
It is my belief that when you treat people like people, no matter who they are or what they do, that you can resonate with them and do a better job for them and that’s what I do. I love people. I love meeting new people. I love helping people with their legal problems. That’s the reason.
What is estate planning?
Estate planning is a process whereby an individual can look at his or her assets and determine how those assets are going to be given to someone who is a close relative, son, daughter, etc., and going through the process of determining how best you can do it, to get those assets to the person you want to get them to, if you pass.
Who needs estate planning?
That is a very good question because there are so many people who feel they don’t have enough assets to do estate planning, when, in fact, everyone should have an estate plan, because if you have a family, you need to have a method by which to get your estate, should something happen to you, to your family. Therefore, everyone needs an estate plan so that they can be prepared.
What is included in my estate?
Your estate when you pass consists of whatever property is still in your name alone. So therefore, if you have a checking account? If you have a savings account? If you have any stocks? If you have any bonds? If you have any real estate that is in your name alone? That is what is included in your estate.
Can a power of attorney be used for estate planning?
A power of attorney is a part of a good estate plan. The part that the power of attorney plays is that if a person becomes disabled, hasn’t passed away, but becomes disabled and cannot therefore make decisions, handle their affairs because their brain has been affected or their body has been affected and they can’t sign instruments, the power of attorney can then take over as a fiduciary and do what needs to be done for that person who has lost the ability to do it.
Can I make a provision in my will for my pets?
As an avid puppy owner, I can tell you with great joy, that you can make provision for your pet or pets in your will so that they can be cared for the way that you would want them cared for.
Can I name alternate beneficiaries in my will?
The answer to that is a resounding yes, because if you’re doing an estate plan properly, you are naming primary beneficiaries and contingent beneficiaries should something happen to your primary beneficiaries so that your will can live longer and you don’t have to make another one if something happens to one of your primary beneficiaries.
Can I use my will to name a guardian to care for my young children and manage their property?
Yes, you can use a will. That actually is the document that you would normally use to designate an individual to care for the person of your minor child, should something happen to you and the other parent.
In addition, with respect to the property that would go to a minor, you can set up a testamentary trust in your will. That will take care of that child’s money, via a trustee who can be appointed.
Can someone challenge my will after I die?
Yes. Anyone can challenge a will who is a potential beneficiary of that will, whether it be a son, a daughter, a niece, a nephew, an uncle. That will is always subject to challenge. However, the challenge goes into litigation and the question then is whether you have the evidence to present to a judge to successfully challenge a will.
Does a will control all of my property?
The answer to that is no. Your will, will control the property that is left in your name alone. Any other property that has been designated on a payable-on-death basis, or in-trust-for basis will go to an individual designated outside the will.
How can an estate plan make things easier on my family after I die?
An estate plan that has not been made, is the estate plan that can leave a family with problems that are potentially unsolvable. Therefore, having an estate plan assists your family in getting the assets that your loved one had transferred in an orderly manner.
I did some estate planning in the past with my financial advisor. Should I still consult an estate planning attorney?
My overwhelmingly substantial response is yes. You must consult an attorney because a financial planner, which is a good thing to have, will not do the legal portion of the work. That is what a lawyer is there for, to do your last will and testament and trust, if necessary, and that is why you should consult both a lawyer and a financial planner.
What are some typical estate planning documents?
Typical estate planning documents are first and foremost last will and testament known as a will. That is the primary document in my realm.
Secondary would be a power of attorney and thirdly, would be a health care surrogate. Also, one other document that could apply to you and may not apply is a trust whether that be an intervivos, living trust, or a testamentary trust made in your will.
What are trusts?
Trusts are documents that are normally created by lawyers, which allow a person to place property in the trust’s name and out of their personal names. The normal method by which this is done will allow a person who has property to transfer that property without going through a probate process. Because a trust is a living document that will allow a transition of property without going to court.
What does a proper estate plan include?
A proper estate plan can include, number one, a last will and testament, your will, regarding your property. It also includes a power of attorney in case something happens to you and you’re not able to make decisions for yourself and it includes a health care surrogate because if something happens to you and you have medical problems, someone else will then be able to take care of those medical problems.
What does joint tenancy with right of survivorship mean?
That is a phrase that is used in real estate normally. It can also be used in bank accounts and stock brokerage accounts. What it means is when you’ve set up on an account as joint tenancy with the right of survivorship, it means that the individuals who are on that account or piece of property are going to take that asset if one or more of the people on the account die without having to go through any type or probate.
What does tenants in common mean?
Tenancy in common is another method by which one can own property, whether it be real property or personal property, with a title element involved. And that means that if two people, for example, are tenants in common in real estate, that means that if one of them passes away, the one who passed away will have to have that interest in the property go into probate to transfer it to the heirs or the beneficiaries which they have appointed.
What happens if you do not have a will or trust?
If you do not have a will or a trust, then the state will make one for you, and unfortunately, the state’s will is a will that you may or may not want to have happen in your particular family, in your particular circumstances. Therefore it’s always good to have a will made in order that it can be your plan and not the state’s plan.
What is a fiduciary?
A fiduciary is a fancy legal word for someone who is handling the money and/or assets of another individual. Normally, that other individual is unable to do what needs to be done with their assets by himself anymore. Maybe he is infirm. Maybe he had an accident and can’t do it anymore, but the fiduciary is someone who is responsible for the money and assets of another person and has legal responsibilities to do that properly or they can be brought to court if they don’t do it properly.
What is a health care power of attorney?
Actually, a healthcare power of attorney is now something called a healthcare surrogate. Florida created a healthcare surrogate many, many, many years ago in order to allow one person to be appointed in a notarized, witnessed document that will be accepted by hospitals and doctors to make decisions for a person who cannot make decisions for themselves in the health realm.
What is a health care proxy?
A health care proxy is a document that would allow one person to be the proxy, which is the substitute, for another to make decisions. However, in Florida, that health care proxy is now known as a health care surrogate. It is a very long document, four pages long, that covers everything that anyone would ever want to cover, health-wise, including the HIPAA law, and it will allow one person to take care of another person’s medical care during the time that they might be in the hospital or going to doctors and unable to make decisions for themselves.
What is a living will?
A living will is a document that was created many decades ago. To take care of a person who becomes disabled, but who has not passed away. That document is now known as a health care surrogate. Unfortunately, people still look at the health care surrogate as a living will, but it is now a new document that is much better, much more comprehensive than the prior living will. So therefore, a person who becomes disabled and who has a health care surrogate that is notarized and witnessed, will be accepted by hospitals and doctors to have one person care for another who’s been appointed.
What is a trustee?
A trustee is an individual who has been appointed to administer a trust, so therefore, if a person has created a trust, they must appoint a trustee who is also known as a fiduciary because that trustee is now going to be handling the assets of someone who made the trust. Therefore, they will have duties and responsibilities to the person who has made the trust and beneficiaries thereof.
What is a will?
A will is a document that states a person’s final wishes and allows a person to designate what they would like to happen with their personal property at the time of their death.
What is an advance medical directive?
An advance medical directive is now known as a health care surrogate. That is a document that allows a person in advance of becoming disabled to sign an instrument that will allow another individual who they trust to handle their medical conditions or problems that they might have with a doctor or a hospital.
What is an executor (personal representative) and what does the executor do?
In Florida, the name of the executor was changed to personal representative many, many, many, many years ago. Probably decades in fact. The personal representative of the will is the person who is appointed to see to it that that will gets admitted to probate in court. They go to a lawyer as the personal representative, to get legal advice in order to do their job as a fiduciary. That is someone who’s handling someone else’s money properly.
What is the death tax? Can I minimize the effect of the death tax through estate planning?
Death tax is actually a misnomer to the extent that it is an estate tax. When I say misnomer, I mean it’s misnamed.
Estate tax is what happens when an individual passes away and has an estate that is large enough to be taxed as an estate. That large estate would have to be, now, in the realm of $5 million. So therefore, if you do not have an estate that is worth $5 million and it’s less than that, you don’t have to worry about estate taxes because you won’t have a federal estate tax, and you will not have a state estate tax, and that a CPA would have to assist you with further.
What should I do if I realize that my parents do not have an estate plan in place?
I see that problem almost every day in my estate planning practice, and it is a very sad thing to see because your parents need to have estate plans to make it easier for you, the relatives, children, nieces, nephews, to have an orderly transition of assets into your name from your parent’s name.
What should I look for in hiring an estate planning attorney?
In my opinion, an estate planning attorney is someone who has not only been schooled in law school to handle estate planning and estates in probate, but also one who has had the experience in a practice of law for many decades so that the can use that information and I, in particular, can use the information that I’ve learned over my 43 years of doing this, to help you with your problems.
When is the right time to begin estate planning for myself?
You should begin estate planning before you ever call a lawyer. You need to determine what your assets are and you need to be thinking about where you want those assets to go, should something happen to you. And once you have started that planning process, that’s when you should call a lawyer.
When should an estate plan be reviewed?
It is my opinion that an estate plan should be reviewed when there are changes in your family unit. If somebody passes away, then you need to review your estate plan to make sure that it is what you want it and need it to be. However, if there are acquisition of properties that need to be dealt with differently than you had them dealt with when you first did your estate plan, then you need to have it reviewed at that point.
When should I review my existing will?
You should review your existing will when you have life changes, when you have an addition to your family, addition to your property, when someone in your will has passed away, when there are specific changes to items listed in your will.
How is a guardianship proceeding initiated?
A guardianship is initiated by drafting and filing a pleading for determination of incapacity of an individual for whom you are attempting to get guardianship for. That is done with a court filing and court proceedings.
What is a guardianship?
A guardianship is a legal realm in which a person, whether it be a minor or a person who is no longer able to care for him or herself, due to illness or infirmity. A guardianship is something that a court does. Therefore, you have to file pleadings in a court to set up a guardianship of either the person and/or the estate/property of that person.
You can avoid a guardianship by having both a power of attorney and a healthcare surrogate that will save you thousands of dollars in going to court.
What is the difference between a guardian of the person and a guardian of the property?
The difference is self-explanatory. However, in order to do it from a legal standpoint, the guardianship of the person is one type of guardianship to take care of the person’s medical and healthcare realm. The guardianship of the property and/or estate is to take care of that person’s assets while they’re unable to do it for themselves. When you have both guardianships together, it’s called a plenary guardianship.
When is a guardianship necessary?
A guardianship is necessary when an individual loses his or her ability to take care of his or her property and healthcare. At that point in time, if they have not had a power of attorney or a healthcare surrogate done, then one has to go to court to the guardianship and probate court and file pleadings to get a guardianship set up for that person who needs the care both of their body and of their assets.
How does the probate process work?
The probate process is a process that begins with something called a petition for administration that will allow the appointed personal representative to get appointed by the court and not just by the will. After that, there are many steps necessary such as notice to creditors and dealing with creditors and the property and marshaling of assets so therefore it is a difficult process, but one that if you have a good, experienced lawyer, you can get through it without much problem.
Am I responsible for my deceased parent or spouse’s bills?
The answer to that is probably not. However, if while they were living, you became a guarantor on a credit card or a guarantor on some other debt whereby you have indicated that you will take over the debt if something happens to them or they can’t pay. So therefore, that is the situation where you would be responsible. However, the vast majority of estates do not require individuals who are not in the estate, that is deceased, to pay the bills.
Are there alternatives to the formal administration of probate?
There are alternatives to the formal administration and probate that include summary administration and disposition of personal property depending on the amount of the assets in the estate.
Can a will be changed or revoked after my death?
No, it cannot be changed or revoked. The only process that exists for something to happen to a will other than what is said in black and white is a will contest, and that requires litigation in order to have a court hear evidence, but it cannot be changed or revoked without a legal process.
Can there be more than one executor (personal representative)?
The law does allow for something called co-personal representatives. However, as an experienced, 43-year practitioner, have never recommended appointment of co-personal representatives. Because co-personal representatives will then be required to agree on everything to administer an estate, and in the human realm, that doesn’t happen very often. Therefore I recommend only one personal representative, and an alternate personal representative. Maybe even a second alternate.
Do beneficiaries have to pay creditors out of their own pocket if the estate is insolvent?
The answer to that is no. If there is an estate that is insolvent, meaning that the debts are greater than the assets, in that event, no one from a creditor standpoint is probably going to get any money from that estate, because whatever money is in the estate will have to be probated, and the costs of administration are paid first before anyone else can get anything, including creditors or beneficiaries. In summary, the answer is no.
Do I need an attorney to handle an estate?
The answer to that is a resounding yes, because Florida requires, by law, that anyone who goes into probate court must have a lawyer. The reason for that is that the probate laws are very large, very long, and extremely wordy within the legal realm. Therefore, someone who tries to do it by themselves would get into trouble very quickly. That is the reason the legislature requires individuals to hire lawyers for probate.
Do I need the original will?
No, you do not need the original will, but it does make the process a lot more expedient. There is a process in which you can file a copy of a will with the court, but there is additional steps that would need to be taken to authenticate that will.
Do life insurance or retirement benefits, including IRA’s, need to go through probate?
That is a complicated question. However, the simple answer is no, they do not necessarily have to go through probate, but it is an estate planning tool, particularly with respect to life insurance in a situation in which you want to establish a complicated estate plan, and in life insurance, beneficiaries are very limited. Therefore you can appoint your life insurance beneficiary to be your estate and then make an estate plan that is complicated for them. IRA’s, on the other hand, and other retirement accounts, can become much more complicated and need much more professional assistance from a lawyer and a financial planner.
Do we need to go through probate if there is a valid and non-contested will?
The answer to that is yes. Probate is the process of not necessarily dealing with contested wills. Probate is the process whereby assets of a deceased person is transferred to a living person, family members. And therefore probate is necessary even in an uncontested will because the court will then verify that will is a good, solid, legal will to be admitted to probate. And then the assets will be transferred in compliance with the law.
Does all property have to go through probate when a person dies?
The answer to that is no. There are various elements of property ownership that do not have to go through probate because if you have designated a beneficiary in for example a checking account, you have a joint account, or in a stock brokerage account, you have a joint account, by operation of law that will pass to the joint owner, especially if it is joint tenancy with rights of survivorship meaning that whoever passes, passes it on by operation of law to the individual who is still living.
How are estate creditors handled?
Estate creditors are handled with publication of the notice to creditors in your local newspaper and it also requires that we place known creditors on notice of the administration of the estate.
How are the estate’s bills paid?
The estate must pay the bills for the estate, and that is the estate assets will be used to pay whatever bills might exist. However, there is a process whereby debts can be alleviated through the use of a notice to creditors process that will then allow you as a beneficiary to actually obtain assets from the estate, even though the debts exist.
How do I marshal assets a personal representative or administrator of a will?
Marshaling assets is just collecting assets and putting it in a place where it can then be distributed from the person who has died to the family members who are still living. The marshaling of assets requires a very well-trained person to deal with financial institutions if there are bank accounts, savings accounts, stocks, bonds and even real property. So therefore, you must have an attorney who’s experienced in order to help you to do the marshaling or collecting of assets.
How does property transfer after death?
That is a question that looks at two different realms. Number one is estate planning. If you’ve done an estate plan, there is some property that can be transferred without probate, and that is property for example, real property, that you have placed in the name of two individuals with right of survivorship. In that case, the one who is still living once one passes will get that property without probate. However, any property that is left in the name of one person who passes away must be probated in order to get that property transferred from the person who is passed away to the living person.
How is an estate probated or administered?
The process of administering a probate begins with the filing of a petition for administration. That is the method by which a case is set up by the probate court for that individual who has passed away. The process involves many, many steps and is difficult and could be long or could be short, and that is why a good experienced lawyer should be handling a probate for you.
How long does the probate or administration of an estate take?
When I first started practicing law in 1974, 1975, probate might take as much as a year to two years to three years. Now that the legislature of the State of Florida has streamlined the process, even a difficult probate case with numerous property in the probate process, it still should only take somewhere between six months and a year.
How long will probate take in Florida?
Probate in Florida normally takes anywhere from three months to a year, depending on the type of administration that you have to go through in the probate process.
My mom recently passed away. Does her estate automatically go through probate?
No, your mom’s estate would not automatically go through probate, unless she passed away owning assets only in her name individually at the time of her death.
My spouse died and left a will leaving his assets to me and my children. Do we have to probate the will?
The answer to that is yes. However, there are some conditions under which you may not have to probate the will because if the estate planning was done and there’s an estate plan that will allow the passage of property by operation of the law without the necessity for probate to go to the spouse and the children. However, if there are assets in the sole name of your spouse those assets would in fact have to be probated in order to go to you the spouse and/or the children.
What are letters of administration?
Letters of administration are the document that results after you file a petition for administration with the court and a motion for appointment of the personal representative and issuance of letters of administration. It’s an easy answer because letters of administration are the license given to the personal representative to represent to the world financial institutions, etc.. That you have the authority to do what needs to be done to get the property transferred from the decedent to the living. It’s like a license to drive a car.
What are probate assets?
Probate assets are assets in the name of a person when they pass away.
What are some of the steps in the probate process in Florida?
Some of the steps in the probate process in Florida are determining what type of probate you need to go through and determining the assets and determining the original documentation including the will that you would need to go through the steps of the probate.
What are the steps involved in probate?
The steps involved in probate include: filing a petition for administration if it is a formal administration, running a notice to creditors, doing an accounting of the probate, and eventually closing out and discharging the personal representative of the estate.
What are the types of probate proceedings?
The type of probate proceedings are formal administration, summary administration, and dispossession of personal property. It depends on the amount of assets that the person has at the time of their death.
What do testate and intestate mean?
Testate simply means that a person dies with a will and intestate means that a person has passed away without a will.
What happens if the personal representative fails to perform his or her duty?
That’s a very good question because personal representatives are considered to be fiduciaries. That is somebody who is dealing with and using the property of someone else. In that case, if the fiduciary, the personal representative, is not doing his or her job properly, then it needs to be challenged and it can be challenged in a probate court proceeding in order to possibly have the job discharge the person who’s not doing their job and appoint someone else.
What happens if we cannot find a will?
That is a tough question, because if you cannot find the original will, then a copy may be accepted by the probate court, and it could potentially require a hearing before the probate court. But if you cannot find any will, then you have to probate with an intestate that is without a will proceeding, where the state makes a will for someone, which can be done. It’s just more difficult.
What if there is no will?
If there is no will, then your administration would be an intestate administration and the Florida statutes would make the will for you.
What is a formal probate?
A formal probate is a formal administration that is necessary when a person passes away with a considerable amount of assets where a personal representative needs to be appointed in order to handle those considerable assets.
What is a personal representative?
A personal representative is the name of the person, from a legal perspective, of the one who becomes licensed to do what is necessary to transfer assets from the person who has passed away, to the living.
What is an estate accounting?
An estate accounting is an accounting of all of the estate assets and the expenses of administration that is submitted to the court at the end of the probate process.
What is ancillary probate?
Ancillary probate is a type of probate wherein someone has died in another state, but maybe had been a resident of Florida, in this case, and they owned property in Florida. Real property. Land. A home. A condominium. In that case, the primary probate would be in the state or place where the individual has died to deal with property in that state. Then there would have to be something called ancillary probate which is probate secondary to a primary probate, and then that property in Florida is going to have to be dealt with by Florida courts. That’s ancillary administration.
What is probate?
Simply put, probate is a fancy legal word for the method by which to transfer assets from a deceased person to a living person. And you can’t do that any other way than through probate.
What is required to complete the list of inventory of assets?
To complete the inventory of assets, you would need documentation of all the assets that the person passed away owning.
What is the attorney’s role in the probate process in Florida?
An attorney’s role in the probate process is defined by what probate is, and what probate is is a method by which to transfer property from someone who has passed away to someone who is still living. And the attorney must, in Florida, assist an individual from a professional standpoint to get the assets in to the judge who handles probate in order for the property to be transferred properly to the individuals who have been left behind by the person who’s passed away.
What is the notice to creditors?
The notice to creditors is a probate document that gets published in your local newspaper that places creditors on notice of the estate administration.
What should I do if there is a will and there are not enough assets to cover the deceased’s debts?
Just because the debts exceed the assets doesn’t mean that the probate process will allow you to alleviate debts through a notice to creditor process, but will then allow you to potentially come away as a beneficiary of the estate with something as opposed to nothing.
What should I do to prepare for seeing a probate attorney?
When you prepare to come in and see a probate attorney, you would need to bring in your last will and testament of the person that passed away, along with their death certificate, their asset documentation, along with any debts that they may have at the time of their death.
What types of property need to go through probate?
All types of property might need to go through probate whether it be personal property, whether it be real property, land, stocks, bonds. Insurance possibly could go through probate, so there are all types of property. Estate planning is the tool one can use with a lawyer in order to determine what property needs to go through probate and what property can go by operation of law without probate to the living.
When can the estate’s assets be distributed?
That normally occurs at the end stages of the probate process when all of the property has been marshaled, collected. However, there is the ability of a personal representative to discuss with the beneficiaries a possible partial distribution of assets while the probate is pending. Particularly if there is real property that is going to be sold that may prolongate the proceedings.
When is probate required to transfer title to real estate?
Real estate is a very unique element of probate, because in real estate, it is a matter of the state, in this case, State of Florida, having an interest in proper devising and devolution, which is giving of property from a deceased person to a live person. Unless you have made provisions in the deed preparation for that property, a real property element will have to go through probate if it’s in just the name and the name only of the person who has died. Therefore, one can try to fix that with estate planning.
Who can and who can not be appointed personal representative?
In Florida, that is a unique question and it’s an easy answer. If you are a resident of Florida and you are making a will, and you want a personal representative who is a blood relative, it does not matter whether that blood relative is in Florida or in Washington state, or in New York or any other state. They can be appointed. However, if you are going to appoint a personal representative, in Florida, who is not a blood relative, that person must be a resident of the state of Florida, as the rules require that.
Who can be appointed as an administrator or administratrix?
That is a question that is better answered in Florida as who can be appointed as personal representative. The terms administrator and administratrix are older terms that went away with legislative changes. However, personal representatives can be relatives or non-relatives. If it’s a non-relative, they must live in the state of Florida.
Who can be appointed executor (personal representative)?
Anyone who is a resident of the State of Florida and who has not committed a felony may be appointed as a personal representative. however, there are limitations with respect to out-of-state people. Out-of-state persons can be appointed as a personal representative in Florida if they’re a blood relative of the person making the will called the testator.
Who inherits my Individual Retirement Account (IRA) if I do not name a beneficiary?
That question is somewhat difficult to answer because IRA’s are assets that are well regulated by the federal government. If no one has been appointed as beneficiary of an IRA, and there is a will, and there is a residuary portion of the will, which is at the end of the will, who gets what hasn’t been dealt with in other parts of the will, and if the residuary beneficiary is designated to get the rest of the assets, the IRA will be one of those assets that the residuary beneficiary would receive.
Who pays for the debts of the deceased person?
The estate is responsible for the debts of a deceased person. However, if there are not enough assets in the estate, then the notice to creditor which is a part of probate will give notice to any creditors who are out there and then those creditors are required to file claims, and that is how debts may be paid by the estate or alleviated.
Who pays for the estate attorney?
The estate pays for the estate attorney. The personal representative, who is appointed to be the licensed person for handling the probate, hires an attorney and then the estate assets first pay the administrative expenses, including lawyer fees, in order to probate the estate.
Can an executor or trustee be removed?
The answer to that is yes. An executor, which is now known in Florida as a personal representative, can be removed for malfeasance, which basically means if they are not treating the assets correctly or if they are stealing the assets from the estate, they can definitely be removed. It just requires a legal proceeding before a probate court. The same thing obtains with a trustee. If there’s a trustee of a trust and they are using the money for themselves, then you have to go to court again to ask for removal. If the evidence demonstrates that they have been self-aggrandizing, making themselves rich from assets that belong to the beneficiary, then they could be removed.
How can an attorney assist me in the probate process?
An attorney can assist you in the probate process by knowing the laws, having experience in litigation of the laws of probate, and would then be able to marshal the evidence or gather the evidence in order to represent you properly, and present your case to the probate judge.
How can the validity of a will or trust be determined?
The validity of a will or a trust can be determined by a judge, a circuit judge, in the state of Florida. The process by which validity can be challenged and determined is to go to court, file a pleading which questions the validity of the document, and then the judge will then provide the point in time at which you can present evidence to determine validity.
I am concerned that the estate administrator is improperly distributing assets. How can I ensure that the estate is being administered correctly?
The assurance that you have that an estate is being administered correctly is to monitor the process, and if you are a beneficiary, you are supposed to be kept up to date as to what’s going on in the probate. If you see that something is amiss or awry or wrong, then you need to go to a lawyer, hire a lawyer, explain to the lawyer what you believe is happening, and then a lawyer can file a pleading with the court to remove the administrator or personal representative if he or she is committing malfeasance.
If I believe the will of a family member is invalid, how long do I have to find a lawyer and raise my claim?
That is somewhat of a trick question. However, it can be answered, and the answer is that as soon as you discover that there may be a problem with a loved one’s last will and testament, I would recommend that it be done while the probate is in process because if you let the probate go to its conclusion, then you have to reopen the probate, which you can do, so, therefore, there is no specific time limit. However, the court is going to look at the time limit that is passed, and you may have a laches problem. Laches is a concept in law that says, “You’ve waited too long.”
What is probate litigation?
Probate litigation is as opposed to the probate process. The probate process does not involve litigation, meaning fighting between beneficiaries and/or lawyers. Litigation is when a problem arises during the course of a probate process where evidence is necessary to prove that something is wrong in the probate process.
What is the no contest clause?
A no contest clause is usually found in a will and it is a statement that has been made by the person who made the will, that if you contest the will or attempt to contest the will, then you will get nothing from the estate. Therefore, if you had a devise or bequeath or a gift in the will, and you contest it, then you will not get anything from the will.
When can a will be contested?
A will can be contested by any interested party, meaning normally a beneficiary or someone who has been excluded as a beneficiary, when the will is presented to the court for admission to the probate process. However, even after the process begins, one can still raise the issue of whether that will is valid or not valid. Thereby, creating a will contest and presenting evidence to demonstrate that it is a contested will that should not be upheld.
Who is able to contest a will?
The person or persons who might be eligible for contesting a will are persons who have what’s called, in law, standing. Standing means you have to be an interested person, such as a beneficiary or an excluded beneficiary who feels that they should have been given something and weren’t given something. Those are the people who can attempt to contest a will.
Wills & Trusts
Do I need to name a guardian in my will?
You should name a guardian in your will if you have minor children. That way the court would have direction with respect to who you would want to have as a guardian for your minor children.
How can I leave specific items to particular people?
A way to leave specific items to particular people is to list those specific tangible personal property items in a separate writing. The will would have a paragraph that would lead to the separate writing and the person can list out all of those items. And the person to receive those items in the separate writing.
How often should my will be reviewed?
Your will should be reviewed every time that you have a life changing event or an addition or subtraction from your family.
Should I put my funeral wishes in my will?
Yes, you should put your funeral wishes in your will so that the personal representative named in your will has direction as to what your final wishes are with respect to either burial, funeral, cremation.
What happens if I die without a will?
If you die without a will, then your estate is considered intestate, and the Florida statutes will make a will for you.
What is a durable power of attorney?
A durable power of attorney is an instrument that can be prepared for a person, who is living, and who will possibly need a power of attorney, which is an instrument that allows one person to control the property of another when that person is no longer able to control his or her property. The durable part of power of attorney means that if there is incapacity of that individual, even mental incapacity, that power of attorney may still be used to care for that person who has signed, had notarized, and witnessed that power of attorney.
What is a testamentary trust?
A testamentary trust is a trust that is as opposed to an intervivos trust, which is a living trust, which is done while you’re living. A testamentary trust is actually produced in your will and it is a trust that is set up to handle the assets that maybe left to a minor or someone who has incapacity of some type or nature that may need a trustee to handle whatever assets are being given to that minor individual or incapacitated individual.
What makes a will legal?
To make a will legal in Florida, the will needs to be signed, notarized, and witnessed by two witnesses.