Trust & Estates, Probate and Guardianship

Estate and Trust Administration. When an individual passes away, his or her estate may be required to go through a Court process called probate. Probate is primarily a process through which title is transferred from the name of the deceased to the names of the beneficiaries. The probate estate consists of those assets that were owned by the decedent and the decedent alone; for example, an individually titled bank account, a retirement account with no named beneficiary, a house in the decedent’s name with another person as tenants in common. Jointly-owned property does not pass through probate and neither does property with a named beneficiary. The probate process involves the application by a qualified fiduciary to be appointed personal representative, often who is nominated to serve in such role by the decedent in the decedent’s Will. The duties and powers of the personal representative are governed by Florida Statute. Creditors must be notified and given an opportunity to present their claims to the personal representative. Once the assets have been marshaled and the creditors have been satisfied, then the personal representative must account to the beneficiaries for the period of administration and distribute the assets to them. Upon successful completion of administration, the personal representative is discharged from any further duties and liabilities. If the individual owned his or her assets through a well drafted and properly funded living trust, it is possible that no such probate administration is necessary, though the successor trustee needs to administer the distribution of the deceased's assets. We can represent either fiduciaries or beneficiaries in the administration of your loved one’s probate or trust estate.

Guardianship Administration. Florida Statute 744.3201(a) provides that any adult person may petition the court to determine the incapacity of any other person.  Upon the petition being filed, the court will appoint an examining committee of three members, one of whom must be a psychiatrist or physician and who must individually examine the alleged incapacitated person and submit a report and finding to the court, upon which it will base its decision.  The burden on proving incapacity is on the petitioner and the incapacity hearing is an evidentiary hearing where witnesses may be called and evidence may be admitted on the record.  In guardianship matters before the court we can represent the petitioning party, the alleged incapacitated person or other individuals who may choose to object to the appointment of a guardian.

Estate Planning. An estate plan can be described as a process to protect and maximize a person’s wealth during lifetime, arrange for financial management and health care decision making in the event of disability, and transfer assets to, or ensure their continued preservation for, intended beneficiaries upon death, in an orderly and cost-efficient manner. Estate planning includes the implementation of legal documents which may include Wills and/or Trusts to accomplish those objectives as well as other “advance directives” including, but not limited to Powers of Attorney, Living Wills, Designations of Heath Care Surrogates. There are also numerous advanced estate planning techniques designed to limit estate taxation, protect persons with special needs, to facilitate business succession and to accomplish other individual needs of a client.

Estate and Trust Litigation. Often times a person will choose to contest a Will or Trust. There are numerous reasons that this may occur, including, but not limited to Lack of Testamentary Capacity, Undue Influence, breach of fiduciary duty and several other common reasons. If you believe you may have a Florida Estate or Trust Litigation matter, our firm handles such matters.