One of the most important decisions that you can make when entrusting the probate of a will or the administration of an estate to an estate planning attorney is to appoint someone that you feel you can trust to take care of such important emotional matters.
As your Lakeland Estate Administration Attorney, I am here to advise and represent you in all aspects of probating wills and estate administration.
As an estate planning lawyer, I have the skills and experience to successfully structure your assets so that they are organized in a manner that ensures their orderly transfer to any trusts and beneficiaries. I am aware of the disharmony that can sometimes arise among a decedent’s surviving family members and friends, and it’s my job to put in place cautionary legal measures to prevent such conflict from arising.
I specialize in a number of probate and estate administration areas including:
When a person passes away, it is often necessary to file probate proceedings with the court to deal with the assets, debts, and other issues with the decedent’s estate.
During these proceedings, it is determined how assets of the estate will be transferred, whether based on a last will and testament, or by law if there was no will.
The payment of the decedent’s creditors will be addressed, and it is important to file certain pleadings in a timely fashion for assets that are exempt by law from being used to pay the decedent’s creditors.
Probate proceedings are also the time for a personal representative to be appointed to manage the probate estate and other related issues, which include noticing the appropriate beneficiaries of estate proceedings, filing of tax returns for the decedent, managing any ongoing business affairs of the decedent until the interest can be transferred, and many other duties as outlined under Florida law.
In certain situations, a shorter and quicker form of administration of the decedent’s estate may be used. Referred to as summary administration, this type of proceeding may be used for certain estates with less than $75,000.00 in qualified assets, or when the decedent passed away more than two years prior to filing the petition.
A careful review of the decedent’s estate is necessary in making the determination whether summary administration is appropriate.
Under the Florida Constitution Section X, Article 4, certain real property qualifies as “homestead.” When a property qualifies as homestead, it will be protected from liquidation to pay most creditors, with certain exceptions, such as a mortgage lien holder. Properties that qualify as homestead are also limited under law from how they may be devised upon death of the owner.
It is important to review real property records of the decedent to make a determination whether homestead applies in order to insure a proper transfer of title to the property.
Generally, homestead protections and restrictions on devise apply to the primary residence of an individual so long as the property is no larger than one half acre within a municipality and 160 contiguous acres if located in the unincorporated county.
If the property of a decedent qualifies as homestead, a special proceeding in the probate court is required to properly transfer title to the home, and to protect the home from estate creditors.
When becoming a successor trustee to a previously revocable trust or being appoint directly as a trustee to an irrevocable trust, it is important to understand the legal requirements for proper trust administration. Depending on the circumstance, there may be obligations to notify both beneficiaries and contingent beneficiaries, pay expenses, and otherwise tend to the assets within the trust.
These issues can be very complex and confusing, which is why the trustee is allowed to secure legal and other professional representation to properly administer the trust.
Other issues that may come up while administering a trust may include the need to judicially modify terms of the trust where allowed by law and dealing with potential legal disputes regarding distribution and management of the trust assets themselves.
Each situation will vary depending on the terms of the trust and other factors. A trustee should review the trust with a legal professional in order to ensure proper administration.
Guardianship involves a court process in which a person petitions to be named the guardian of an individual who cannot manage their financial or personal affairs, usually due to physical or mental limitation. The person whose affairs the guardian is seeking to manage is known as the ward.
Once a guardian is appointed and a guardianship estate is created, the guardian has ongoing obligation to file reports and accountings with the court, allowing the court to supervise the administration of the guardianship estate to ensure the ward’s rights are protected.
The most common form of guardianship occurs when someone loses physical or mental capacity. The impairment may be temporary, or permanent.
Upon filing of a petition to determine the capacity of the proposed ward, a committee of doctors will evaluate the ward to determine their level of impairment and recommend which rights of the ward should be managed by the guardian, and which, if any, should be exercised by only the ward.
A guardianship may be terminated if the court finds that the ward is no longer incapacitated.
Depending on the finding of the court after examination by the doctors, a guardian may be appointed to manage the finances of the ward, such as bank and brokerage accounts, and the general day to day payment of expenses on behalf of the ward.
Additionally, the guardian may be appointed to make medical decisions of the ward, if the ward is unable to do so themselves.
In some situations, a guardian may need to be appointed to take care of a minor child. A guardianship proceeding relating to a minor child is similar to seeking a guardianship of an incapacitated person, but without the first step of determining incapacity. This can occur when there is an absence of a responsible parent as a “natural guardian” of a minor child.
Additionally, there are certain circumstances under law where a parent may need to petition to become their child’s legal guardian with court supervision. This mainly occurs with the child receives certain distributions such as payments under a life insurance policy.
Distributions over certain amounts require the court to be involved to supervise the guardian’s management of the assets to ensure the assets are properly used or protected for the child. Similar to adult guardianships, the guardian is required to file reports and accounting with the court for review and may need to file additional petitions when the guardian is seeking to use the money for the benefit of the minor child.
If there is already an active guardianship, or the parents of a child have reason to believe that a legal guardianship will become necessary for their minor child, a petition can be filed to appoint a standby guardian. A standby guardian is someone who can immediately step in as the guardian of a ward should something happen to the existing guardian, or natural guardians of a minor child.
Florida recognizes that there are times when the parents of a child may of the child residing with extended family members. Since it is not uncommon for extended family to be involved with a minor child, there are times when the extended family member may need authority to manage the child’s school enrolment, medical treatment, etc. If the extended family member needs authority to act, a petition may be filed in the court for an order grating concurrent custody of a minor child so that the extended family member may act regarding medical treatment, school enrolment, and other issue relating to the child.
An extended family member may also petition the court for temporary custody of a minor child when there is evidence that the child is subject to abuse, abandonment, or neglect by the child’s natural parents. While similar to proceedings by the Florida Department of Children and Families, this is a direct proceeding by an extended relative where it is the petitioning relatives’ responsibility to produce sufficient evidence to the court to obtain a custody order as set out under Florida law.