Stop me if you’ve heard this before….

We work with families to educate them and give them peace of mind by answering their questions, explaining the legal process and creating the documents that help 1) create, protect and transfer their nest egg to their loved ones OR 2) navigate the Probate and/or Trust Administration process. What is unique about our practice is that we try to minimize the financial and emotional impact of their matter.  Also, clients expect the experience to be stressful and unpleasant, but we surprise them with the warmth and accessibility of our team and services, and even humor – and often become their lawyer for life.

Your grandma has passed away and, before you can even dig out your black suit, you learn from Aunt Betty Lou that distant cousins Phyllis and Evelyn just happened to be at grandma’s house in the dead of night (no pun intended) and now grandma’s valuables, including her collection of Beanie Babies promised to you and your brother Kevin, have mysteriously gone missing.

Dad assured you that everything relating to his Estate was in perfect order because he had a Will, but when he died you discovered his home was still in his sole name and would have to “go through Probate.” Now, you and your siblings are debating over whether to sell, rent or keep it.  In the meantime, who will pay for its upkeep until a decision is made?

Divorced and childless Uncle Eddy dies without a Will. You and your cousins aren’t sure who will or should be in charge of his “stuff.” And, since Eddy thought organization was for people other than him, you haven’t the faintest idea what stuff he has or where it may be.  What happens next?

Probate is one of the legal matters that leads to the most confusion and garners the most questions in our office. See the links below for some of the most asked questions we field, and our answers, about Probate.

Does having a Last Will & Testament automatically avoid Probate Administration?

No!  If you answered yes, you are dead wrong (pardon the pun.) Having a Will actually has NOTHING to do with whether Probate is necessary. Probate simply means “the official proving of a Will” and refers to the Court proceeding which directs what happens when the deceased person (“Decedent”) dies with assets still titled in his/her name (absent joint ownership or beneficiary designations).  If you want to avoid Probate, don’t die with any assets still titled in your name (and we are not saying this to be funny as it does not mean die penny-less – it just means that you should properly plan to own property jointly or pass it through beneficiary designations or via a Trust).

Trust Administration occurs when a Trustee is appointed in a Trust, or by the Court, to make certain financial and other decisions involving the particular assets owned by the Trust. A Trustee has wide-ranging powers and responsibilities and has a fiduciary duty to all of the beneficiaries of the Trust to ensure that all creditors are paid, and all of the remaining Trust assets are distributed properly to the right beneficiaries.  If a client does not have a trusted loved one or friend to serve as Trustee, he/she can name an attorney, accountant, financial planner or financial institution to serve as Trustee.

Guardianship is where the Court appoints a surrogate decision-maker for personal and/or financial decisions for a minor or an adult with mental or physical disabilities (“the Ward”) and is vested with the authority to protect the Ward’s best interests. When the appointment of a Guardian is sought, Florida law requires that the Guardianship be of the “least restrictive means” possible so that the Ward relinquishes only those rights that the Court feels are necessary. To the extent that the reason for the Guardianship is no longer applicable (such as the Ward reaching the age of majority or recuperation from a medical condition where the Ward is then-able to act/care for him/herself, then the Guardianship can be terminated. Absent the termination of the Guardianship, it stays in effect until the Ward dies.

If you do not have a Will or Trust, or are in need of a Guardianship, then it is likely that the Court will appoint someone to act on your/the Estate’s behalf and earmark assets for those beneficiaries set forth in the Intestacy statute (which does not include companions, friends or charities).  But why would you want to give the Court control?  It’s like a teenager letting her frenemy pick out her prom dress or a former spouse asking the ex to set up a new online dating profile – it’s not smart and people are likely to be sorely disappointed.  When it comes to deciding the distribution of your possessions, let the decision be yours and call us to handle your Estate Planning situation.  Meanwhile, if you’ve “inherited” (pun intended) a Probate situation and are not sure how to handle it, then keep reading or call us to walk you through the process!

Probate is the Court-supervised process of gathering a Decedent’s assets, paying taxes, claims, and expenses, and distributing the Estate to its beneficiaries. If assets were left in a Decedent’s sole name, the Estate beneficiaries would lack sufficient authority to exert any control over those assets. Take, for example, a Real Estate closing. If Real Estate is left in a Decedent’s name and the family tries to sell it, at the Closing, there would be an empty chair where the Seller would typically sit because the Seller has passed away. Without having a Probate Court appoint a Personal Representative or declare that the property belongs to certain beneficiaries, no one would have the legal authority to sit in the Seller’s chair to effectuate the Closing and the Closing could not occur. The same concept applies to other assets with an “empty chair” such as bank accounts, IRA/401ks or life insurance that do not have co-owners or beneficiaries.

Yes, but only after a lot of paperwork is filed in Court to confirm that the Will is valid. The Will directs what happens in Probate such as who is appointed to be in charge, who the beneficiaries are, etc. When the Decedent dies with assets still titled in his/her sole name, Probate Administration is needed to properly transfer the asset(s) to the rightful beneficiaries.

In Probate, a Personal Representative (“PR”) – also called an Executor/Executrix in other states, is vested with the authority to transfer the asset(s), either to the beneficiaries named in the Will or, if there is no Will, to a list of statutory beneficiaries pursuant to Florida law (“Intestacy” statute). However, there are different types of Probate cases depending on the circumstances: Disposition without Administration, Summary Administration and Formal Administration – see the additional Q&A below for more information on each type of case.

In most cases, if the assets do not have Payable-on-Death beneficiaries designated, are not titled in such a way as to create Rights of Survivorship or are not titled in the name of a Trust, Probate is the mechanism for transferring title of assets into the names of an individual’s beneficiaries once they pass. If there is a Will, the Will operates as a “roadmap” of the Probate process by providing instructions as to who should be “in charge” of marshalling all of the assets involved, as well as who should receive those assets. If there is no Will, there is a Florida Intestacy statute which dictates which family members should receive the assets. These folks may not be who you would have chosen as your beneficiary, for example, the estranged brother you haven’t talked to in 20 years or the cousin you don’t even know, which is why it’s wise to have at least a Will, and possibly a Trust in place to provide direction for where you’d like your nest egg to go and who should be in charge of the process.

No, as long as you insert the appropriate contingent language in a Listing Agreement or Contract for Sale & Purchase so as to condition the sale on appointment of a PR or obtaining approval of the Probate Court, it is possible to market and even enter into a Contract for Sale & Purchase almost immediately.

Yes, in simple situations. However, Florida Probate Rule 5.030(a) dictates that a Personal Representative in a Formal Administration of an Estate must be represented by an attorney.  For other proceedings that do not require Formal Administration, such as Summary Administration and Disposition of Personal Property Without Administration, you are not required to be represented by an attorney. However, because Probate procedures can be highly complex, it is urged that at the very least you consult with an attorney (if you do not retain one) before deciding to proceed on your own.

Not at all! Placing your hard-earned assets into a Trust in order to protect them after you have died doesn’t require Rockefeller level money. If you own real property (like a house or condo) or have amassed assets during your lifetime and you want to ensure that such assets go to your loved ones with as little cost or delay as is possible, a Trust makes sense. If your children/grandchildren are young, if your son/daughter is married to someone you don’t like or worry about, if a family member has addiction or creditor issues, establishing a Trust will help to keep control of those assets after you aren’t here to manage them yourself. From there, naming a Trustee who will act in your beneficiaries’ best interest is essential. The person or entity serving as Trustee will be tasked with handling the Trust Administration (i.e., honoring and carrying out your wishes as you dictated in your Trust). If you don’t have that perfect person to serve as your Trustee, consider naming your financial advisor or accountant to serve if you have that type of relationship. If you still come up empty, then speak to us about one of the attorneys at Jupiter Law Center serving as your Trustee – we are often asked to and are honored to serve as Trustee to make sure that the wishes expressed in your Trust are fulfilled.

Trust Administration fees vary depending on the size and complexity of the Trust and its assets; simple Estates might be charged a fee based upon the firm’s hourly rates; more complicated Estates are generally charged a fee based upon the value of the Trust ranging from 1% to 2% of the value of the assets being managed in the Trust.

Guardianship may be necessary if the Court finds that the Ward’s ability to make decisions is so impaired that a Guardian is needed to make decisions on the Ward’s behalf or to receive proceeds from a lawsuit, insurance policy or inheritance. Too often we receive calls from the adult children of parents or even spouses whose mom/dad or husband/wife has declined in health or who has been suddenly incapacitated and who has not executed a Durable Power of Attorney or Health Care Surrogate to designate an Attorney-in-Fact to act in the event of incapacity. If the parent/spouse is now incapacitated, it is too late at that time for them to sign those documents and, unfortunately, a Guardianship proceeding shall be necessary so someone can step in for the Ward to safeguard the Ward’s health and protect the Ward’s assets.

If a Guardianship needs to be established, the proposed Guardian first files a Petition with the Court in the jurisdiction where the Ward resides. Once appointed by the Court, the Guardian becomes legally responsible for making decisions to enforce or protect the rights of the Ward and to file all of the required Annual Accountings/Plans and Physician Reports regarding the Ward’s finances.

In Florida, a Guardian (whether a family member or Professional Guardian) is entitled to reasonable compensation and the Florida statutes set forth the criteria to be considered by the Courts in determining and awarding fees to the Guardian.  Professional Guardians are required to submit a detailed application and background check as well as complete training and continuing education.

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