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Frequently Asked Questions – Probate Litigation, Estate Planning & Guardianship

Frequently Asked Questions - Probate Litigation, Estate Planning & Guardianship  

Overview

Why do I need to avoid probate?

Probate is the court-supervised legal process of identifying assets of a deceased person, paying their debts, and transferring their property to the beneficiaries.

Consider the following reasons why you would want to avoid probate:

  • Privacy. Probate is a legal proceeding. This requires filing documents with the court that could potentially be viewed by anyone, online or in-person. If for any reason you do not want to disclose your finances or property to your family (or anyone else), you will want to avoid probate to keep this information out of easily accessible court records.
  • Costs. Probate costs can be high depending on the estate. It can be particularly expensive if litigation is involved. Costs can include filing fees, accounting costs, attorney fees, and expenses of the personal representative. Under Florida law, the personal representative and their attorney are “entitled to a commission payable from the estate assets.” Fla. Stat. § 733.617(1). This means they will be paid from your estate, which leaves less of your assets to be distributed to your loved ones.
  • Time. The probate process can be long. It can take up one (1) year to complete and sometimes even longer depending on the circumstances and complexity of the estate. During this time, your loved ones will not have access to any of your assets while they are tied up in probate.

How Can You Avoid Probate?

  1. Living trust. You can transfer virtually any of your assets into a trust, including real property and bank accounts. A trust allows you to avoid probate entirely because your assets have already been distributed to the trust. You can revoke or modify the trust during your lifetime.
  2. Joint ownership. Probate is required for assets that were held solely in the individual’s name at the time of death. Therefore, if there is a joint owner with the right of survivorship, the asset will transfer to the co-owner upon your death, and probate is not required.
  3. Designating beneficiaries. Naming beneficiaries of your assets, such as bank accounts, 401k, pension plan, or other retirement funds, is a simple and easy way to keep those assets out of probate.

How can I have an estate plan that cannot be challenged?

In Florida, no-contest clauses in wills are unenforceable. This means that a beneficiary (or any interested person) can contest the contents of a will, making proper estate planning even more crucial.

Below are some steps you can take to help prevent issues with your estate.

  1. Work with an experienced attorney. This is the first step to creating a comprehensive and effective estate plan that will hold up in court. An experienced estate planning attorney will ensure that all necessary documents are properly executed and address any potential pitfalls with your plans.
  2. Share your decisions. Communicating your plans to your loved ones may make it less likely that they will contest your will in the future. This will help them understand your decisions and avoid any confusion by allowing them the opportunity to ask questions while you’re still around. Knowing what will happen in the future can also eliminate the element of surprise. Feelings of shock can contribute to future conflict, especially during an emotional time.
  3. Update your plans. Updating your estate plans is an important step to avoid litigation. This includes regularly assessing your assets, personal relationships, and financial situation. You want to be sure that your plans reflect your current situation, intentions, and desires. Updating your estate plans is crucial following important life events, such as marriage, divorce, deaths, births, or a significant increase or decrease in assets.

Is guardianship always expensive?

The costs associated with guardianship are different in every case. Court costs vary depending on the type of guardianship involved and attorney fees also vary depending on the complexity of the case. These costs are generally reimbursed by the ward (the legally incapacitated individual), provided that they have the assets or income to do so. The ward’s health insurance may also help pay for some medical expenses. It may even cover expenses associated with the examining committee and initial determination of incapacity. If the ward is deemed indigent, the state may also pay fees associated with guardianship.

A knowledgeable and experienced guardianship attorney can help you understand the potential costs and whether some of those expenses may be covered by someone else.

My loved one can’t take care of themselves anymore. What do I do?

Realizing that a parent or loved one can no longer take care of themselves can be difficult. Unfortunately, many adults may be hesitant or unwilling to admit they need help. If your loved one can no longer make rational decisions regarding their health care or finances, it may be necessary to seek legal guardianship. Guardianship is needed when the incapacitated person does not have a proper power of attorney or health care directives in place.

A guardianship is a legal proceeding in which the court appoints a guardian to exercise the rights of the incapacitated person. This includes making personal, financial, and medical decisions on their behalf. A guardian will only be appointed after a medical evaluation and determination that the individual lacks capacity in some or all areas of their life to make informed decisions.

Any Florida resident, at least 18 years old, whether related to the incapacitated person or not, may serve as the guardian. Certain relatives that are not Florida residents may also serve as the guardian. However, no person who has been convicted of a felony or is incapable of discharging the duties of a guardian may be appointed.

In some unfortunate situations, guardianship may be the only way to ensure your loved one is safe and cared for, both physically and financially.