Common Questions About Florida Law
It is natural to have many questions and worries when faced with a legal issue or litigation. The experienced lawyers at DeLoach, Hofstra & Cavonis, P.A., ask many common legal questions and provide useful answers to help get you in making the best decisions for you and your family.
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How much will it cost to hire a Florida probate attorney?
If you are the nominated personal representative to an estate, you will probably be looking for a probate attorney to help you in this difficult time. You need an attorney for a formal probate administration - i.e., when the probate estate exceeds $75,000 - to assist you. In this situation, you may be wondering about attorney's fees, among other matters. In Florida, the probate attorneys generally gets paid a fee of around 3% of the probate inventory, as explained a little better below.
Estimating the Cost to Hire a Florida Probate Attorney
Florida's probate rules were created to help define a reasonable attorney's fee based upon the size of the estate/probate. It's worth noting that the "value" of the estate includes only the assets that go through probate (and any income they earn during the probate period). The value of a homestead property and assets that avoid probate may not be counted.
Florida statutes set forth what are considered reasonable fees for Florida probate attorneys at the following rate:
- $1,500 for estates up to $40,000
- $2,250 for estates between $40,000 and $70,000
- $3,000 for estates between $70,000 and $100,000
- $3,000 plus 3% of the value over $100,000 for estates between $100,000 and $1 million
- $3,000 plus 2.5% of the value over $1 million for estates between $1 million and $3 million
- $3,000 plus 2% of the value above $3 million for estates between $3 million and $5 million
- $3,000, plus 1.5% on the value above $5 million for estates between $5 million and $10 million
- $3,000, plus 1% of the value above $10 million for estates over $10 million
Many attorneys have a minimum fee to do a probate that may exceed this schedule. One key to understanding the attorney's fee portion is that attorneys may be up for negotiating their fee depending on the size/complexity thereof. If the family is talking to a good probate attorney, that attorney will discuss the nuances of the work, their fees, expected costs, etc., before that attorney is hired. The 3% fee as mentioned above is not binding on the attorney or the family but it is a starting point for what is reasonable under most situations.
The fee schedule mentioned above is what is considered a reasonable fee, but fees may rise for what are considered extraordinary services. This may include dealing with taxes, litigation, real estate matters, how good the attorney is, etc., among other matters. The rules for all of this are set forth in Chapter 733, Florida Statutes, if you want to learn more.
Probate and Homestead
Generally speaking, the 3% fee does not include the value of the homestead property. While this can be pretty complex, the decedent's homestead is not part of the probate process so the attorney's fee is not based upon the value of the homestead property. Here, attorneys will charge a fee to declare the property as homestead, but that fee is generally not based upon the home value.
Other Costs of Probate?
The costs of probate include more than just attorney's fees, although that would typically be the most expensive fee. In going to court, the estate will generally need to have other costs, which may include court filing fees, bonds, publication fees, etc., In Pinellas County, we generally estimate the hard costs for the estate to be around $1,000 in most circumstances.
Can I move my mom into a nursing home while her Medicaid application is pending?
When your loved one is having health issues, it can be difficult to make the decisions on getting good care and thinking about how government benefits, such as Medicaid, can help. Medicaid is a part of our social safety net to help the needy pay for the cost of long-term care. Medicaid can help pay for nursing home care, assisted living or in-home care, but the asset and income rules, among other matters, are strict for those applying.
Sometimes, the elder is living at home and the family cannot help any longer or the elder is just too needy to be home safely. This may mean that the elder must go directly to a nursing home due to their long-term care needs. But can an elder apply for long-term care Medicaid before moving to a nursing home? The basic answer is NO.
Nursing Homes May Not Accept a Medicaid-Pending Resident
In the best-case scenario, a person will apply for Medicaid well before they need care, but there is a wait-list for long-term care benefits at home. This may mean that the elder does not come off the wait-list before needing to transition to a nursing home, which may mean that you cannot apply for Medicaid until the elder is actually in the nursing home.
When someone applies for Medicaid, this is generally known as being "Medicaid pending." But you cannot be Medicaid pending until you are:
- In a nursing home (i.e., skilled nursing facility/rehabilitation facility); and
- You have actually applied for Medicaid.
Unfortunately, most long-term care facilities will not someone who comes into the facility unless the are private paying. All of this is confusing but the big picture is that if the elder does not have money, placing into a nursing home is difficult without private paying. The reasons are as follows:
- The nursing home might not be reimbursed. There's no guarantee that a pending application will be approved. Nursing homes may be unwilling to take on a resident without a guarantee of benefits from the government to offset their costs.
- Approval may not be retroactive. Even if a resident is approved for Medicaid, there's no guarantee that they will receive retroactive benefits. If benefits are only provided for the future, the resident and their family will have to pay for any costs incurred between the date of admission and the date of approval.
- Eligibility may be deferred. Many Medicaid applications contain errors, discrepancies, or incomplete information, causing problems that defer eligibility. Medicaid generally won't cover any delays due to application mistakes, so costs will fall on the resident for care received during this time.
Of course, there are many situations where families may be unable to wait for government assistance before moving an elder into a nursing home. If your loved one's care needs are changing, our legal team can answer your questions and help you secure the benefits you need. When an elder law attorney is helping the family apply for Medicaid, a long-term care facility may accept someone Medicaid pending as the facility will trust the elder law attorney's representations that the elder will get Medicaid.
If you want help, simply fill out our quick contact form or call DeLoach, Hofstra & Cavonis at (727) 777-6842 to set up a consultation.
What is Asset Protection?
Broadly speaking, asset protection using estate planning protect your assets from creditors, taxes or the cost of long-term care. Not every estate planning attorney is an asset protection attorney as there are a lite of different levels of expertise in this field of law.
Who Needs Asset Protection?
Anyone who has high-value assets or anyone who is considering protecting their assets from the nursing home should have some form of asset protection. Our estate planning attorneys create personalized asset protection measures based on your unique situation. We review your assets and income to discover what's currently protected (and what's not protected), as well as your debts and your likelihood of being named in a lawsuit. Then, we determine the best way to secure your unprotected assets, and make sure your plan will work as intended.
Without asset protection, your life savings and holdings could be lost to:
- Divorce. If you separate from your partner, the court may order you to give half of your property to your ex-spouse. Also, your estate plan could protect your children's inheritance from divorce, as well.
- Court judgments. If someone sues you or your business, you could be held personally liable for whatever amount the court awards. Asset protection can make some of your income and property exempt from collection.
- Nursing homes. It's possible to qualify for Medicaid to pay for long-term nursing care while keeping your assets safe to pass on to your children. However, you will have to create an irrevocable asset protection trust several years before entering a nursing home. Otherwise, you may have to pay for long-term care out of pocket.
- Taxes. There are a variety of tax planning strategies to avoid the federal "death tax," but which one will best achieve your goals? We can hel establish protection methods so that everything you worked hard for will go to your family, not to the government.
If you have questions about your Will, your estate plan, or your eligibility for Medicaid, the attorneys at DeLoach, Hofstra & Cavonis can explain your options. Simply fill out the quick contact form on this page to set up a consultation and get answers to your questions.
What's the difference between a Medicaid specialist and an elder law attorney?
Medicaid can be a lifesaver when it comes to paying for nursing home care. Unfortunately, the various requirements for the program can be extremely confusing, and you may need help with the application process. Elder lawyers and Medicaid specialists can both help you apply for Medicaid, and the right one for you will depend on your specific circumstances.
What Do Medicaid Specialists and Elder Law Attorneys Do?
First, let's talk about Medicaid specialists. These can be individuals or whole firms that specialize in Medicaid eligibility and application. For a fee, they can gather the documents you need to apply, submit your application, and follow up with you as the application moves through the system.
However, Medicaid specialists are not lawyers. They don't help with the many issues that usually arise along with the need for Medicaid, and can't offer legal advice if something goes wrong.
An elder law attorney does all of the above, plus:
- Protects healthy spouses. If your loved one is married, but their spouse does not require long-term care, the spouse's assets may be counted against Medicaid eligibility. An elder law attorney can protect spousal income and assets over the Medicaid limit and ensure a spouse can continue living in the family home.
- Helps your relative create an estate plan. Without an attorney's help, families may spend their loved one's life savings on care—but it doesn't have to be this way. An elder attorney who practices estate planning can set up trusts and other structures to ensure that there's something to pass on to heirs.
- Performs incapacity planning. Attorneys can create an enforceable plan using durable powers of attorney and designation of healthcare surrogates if your loved one becomes unable to make decisions on their own.
- Helps you through life care planning. There are invaluable legal services related to aging, such as choosing the facility that will preserve your loved one's dignity and independence, securing in-home care, preventing elder abuse, and ensuring the best care for the best price.
At DeLoach, Hofstra & Cavonis, our goal is to help your whole family through the most difficult times in their lives. We have completed thousands of Medicaid applications while protecing our clients and protecting assets. If you need help qualifying or applying for Medicaid, simply fill out our quick contact form or call us at (727) 777-6842 to set up a consultation.
How does working with an elder law attorney benefit my kids?
People often seek out elder lawyers when they are in the midst of a dire situation. They may need immediate help to protect a senior’s health and finances, or are looking for ways to pay for long-term care without sacrificing their life savings.
While these are certainly matters an attorney can handle, they are capable of doing far more—especially if you meet with them sooner rather than later. An experienced elder law attorney doesn’t just help you, they can give you the answers you need to help your entire family.
Working With an Elder Law Attorney Now Will Benefit Your Kids Later
Unfortunately, those who fail to plan ahead unknowingly place the burden of their care and debts on their children. The bulk of your estate may be used to pay for medical bills and nursing home care, leaving your heirs without an inheritance. An elder attorney’s advice is well worth having, especially if they can save your family thousands of dollars and avoid future legal headaches.
Our elder law services can help you:
- Qualify for Medicaid. We use a variety of estate planning methods to plan for future care needs, such as creating a trust to safeguard your property while Medicaid pays for assisted living. Simply put, elder law attorneys know how and when to protect assets, either in a time of crises or 5 years before Medicaid is needed.
- Provide for a surviving spouse. We can create a plan for married couples to ensure the surviving spouse will have money left over once the estate is settled.
- Save your family’s home and assets. We ensure all documentation is compliant under Florida state law, and that your plan will work correctly if you become incapacitated or pass away. This prevents potential legal battles over your estate that could drain your assets.
- Secure your health and wealth. Creating the right legal documents now ensures that the right people will have decision-making authority over your funds and healthcare. A power of attorney, living will, and guardianship designations are just a few ways to protect an older relative now and at the end of life.
At DeLoach, Hofstra & Cavonis, we help whole families through the most difficult times in their lives. Simply fill out the quick contact form on this page to set up a consultation and get answers to your questions.
What does trust reformation mean?
Sometimes, a person's trust document may have provisions that are not in line with the creator's true intent. Trust reformation is the process of legally modifying a revocable or irrevocable trust to reflect the creator's wishes. If the settlor (the person who created the trust) is still living, they may be able to amend the trust without reformation. If the settlor is deceased, reformations may require agreements among beneficiaries or court proceedings.
Provisions That Can Be Changed Through Trust Reformation in Florida
Under the Florida Trust Code, a trust can be reformed to correct a mistake by the settlor even if the plain language of the trust is unambiguous. In simple terms, the document says something contradictory to what the settlor would have wanted. To reform a trust, you will need to provide clear and convincing evidence of the settlor's original intent.
Reformation may be used to correct many types of errors in a trust document, including:
- Mistakes of law. A trust may need to be modified to reflect any changes in state or federal inheritance and tax laws.
- Mistakes of fact. Reformation may be needed if the trust document was not updated after the birth or death of family members, changes in the settlor's or family's financial condition, or revisions in the settlor's personal beliefs.
- Drafting and printing errors. Florida does allow reformation to correct printing, signing, or drafting errors in an otherwise valid trust. However, it can't be used to correct an invalid trust document if the proposed changes would make the trust valid.
Trust reformation has its limits. For instance, it can be difficult or impossible ot make any modifications that are contrary to the interest of the settlor. In addition, reformation may not make it easier to make additional changes to the trust terms in the future.
The estate litigation attorneys at DeLoach, Hofstra & Cavonis can meet with you to discuss your legal concerns and help you fight for what you deserve. Simply fill out the quick contact form on this page to set up a consultation and get answers to your questions.
When should I consider getting guardianship over my elderly parent?
Most people who come to us to establish guardianship have already taken on the duties of caring for an ailing loved one. You may be cooking their meals, running them to hospital visits, or picking up their mail and paying bills on their behalf. However, there is a limit to how much you can legally do for your parent without the proper authority—and it is generally best to get this authority sooner rather than later.
Warning Signs That You May Need Guardianship Over an Elderly Relative
The choice to get legal control of a parent’s affairs can be unsettling, and can lead to family disagreements that push the decision, and the elder's safety, down the road. Unfortunately, putting off guardianship proceedings may force emergency action when your parent hits a crisis point, adding to your stress and discomfort in an already difficult time.
There are a few ways to tell if it’s time to start the guardianship process. For example, you may need legal help if there is a threat to your parent’s:
- Safety. Guardianship can help if a parent is suffering from a medical condition that often results in long-term decline (such as dementia, cancer, or organ failure) and he or she does not realize that they are unable to make the correct health care decisions.
- Life savings. The elderly are often targeted by scammers, caretakers, and even relatives looking to profit from their vulnerability. If you have seen strange transactions in your parent’s accounts or fear that someone is trying to gain access to their money, you should speak to us about guardianship.
- Health and well-being. If your parent has not appointed someone to act as the health care surrogate and the family does not get along, you will need guardianship to make decisions about their healthcare, housing, and long-term care. Under Florida law, if the elder has not created a health care surrogate, then the family would generally make decisions as the elder's health care proxy. But if the family does not get along and they do not agree on the health care decisions to be made, it is likely that a guardianship attorney would be necessary.
- Lack of Pre-Planning. Guardianships can often, but not always, be avoided through the proper estate planning. If your loved one has not created a durable power of attorney, for instance, and then loses capacity, then a guardianship will be needed to handle his or her affairs.
Lack of Capacity Standards for Guardianships
When a guardianship is sought, the court generally needs to find that the alleged incapacitated person lacks capacity. Here, an “incapacitated person” means a person who has been judicially determined to lack the capacity to manage at least some of the property or to meet at least some of the essential health and safety requirements of the person. Further,
- To “manage property” means to take those actions necessary to obtain, administer, and dispose of real and personal property, intangible property, business property, benefits, and income.
- To “meet essential requirements for health or safety” means to take those actions necessary to provide the health care, food, shelter, clothing, personal hygiene, or other care without which serious and imminent physical injury or illness is more likely than not to occur.
We understand that seeking a guardianship is a hard decision—and while we cannot change the past, the attorneys at DeLoach, Hofstra & Cavonis can take it from here. Simply fill out the quick contact form on this page to set up a consultation and get answers to your questions.
When does a family member have grounds for contesting a will?
In Florida, there are only a handful of legal reasons for contesting a will. If the will was created voluntarily by a person of sound mind and in accordance with state law, you may not have any legal basis for challenging it.
However, if you do have a valid claim, you should know that only certain parties can challenge the terms of a last will and testament in court.
Who Can Contest a Will in Florida?
In the Sunshine State, people who can challenge the terms of a will include:
- Heirs-at-law. Heirs-at-law are close relatives that would have received a share of the estate if the decedent had died intestate (without a will). Under Florida intestacy laws, surviving spouses inherit first, then children, then grandchildren, then parents, then other descendants. As an example, let’s say Grandpa left a will that provides for his wife, children, and two grandchildren. The problem is, Grandpa had three grandchildren. This could mean that the will wasn’t updated to include Grandchild #3, or that Grandpa had his reasons for disinheriting her. If Grandchild #3 brings a claim, she has to prove that Grandpa didn't intentionally mean to cut her out of the will, or that will isn't valid for some other reason.
- Beneficiaries. Anyone named in the current or previous versions of a will may have legal standing to make a claim. For example, an adult child may contest a parent’s will if they were named as executor in a prior will, but was replaced by someone else in the current version.
- Guardians of interested minors. While minors typically cannot contest a will because they're not old enough to bring legal proceedings, a disinherited minor’s parent or legal guardian may be able to challenge the will on the child's behalf.
As the person bringing forth the will contest, you have the burden of proof in the case. This can be difficult, especially if you don't have explicit medical proof of incompetence or other evidence of fraud. We can help you gather evidence to establish that the will isn't valid, allowing you to collect what's rightfully yours.
The estate litigation attorneys at DeLoach, Hofstra & Cavonis can meet with you to discuss your legal concerns and help fight for what you deserve. Simply fill out the quick contact form on this page to set up a consultation and get answers to your questions.
What is trust litigation?
Trust litigation occurs when there are disputes about the distribution or handling of a deceased person’s assets. Just as probate litigation involves challenging the terms of a will, trust litigation involves challenging the terms of a trust. You may be named in an estate litigation lawsuit if you're one of the beneficiaries of the trust, or if you're a trustee accused of mismanagement.
When Is Trust Litigation Necessary?
Ideally, a trust should be formed with the help of an estate planning attorney to ensure that instructions are clear and there are no errors or oversights that could lead to lawsuits. However, legal problems can still arise if heirs disagree on the terms of a trust.
You may need to hire us as your trust litigation attorneys if:
- There are assets missing from the trust. Trustees have a duty to follow the directions laid out in the trust, and to act only in the best interests of the trust or its beneficiaries. If you suspect a trustee has been stealing or mismanaging trust assets, they can be compelled to provide accounting information to the beneficiaries or be considered in breach of the trust.
- You were unexpectedly disinherited. Although some heirs are intentionally left out of a trust, there are cases where disinheritance should be challenged. For example, if the deceased promised that you would inherit and the trust was recently amended, we can help you investigate the matter and press your claim.
- You suspect fraud or criminal activity. If someone coerced the creator of the trust to change the terms in their favor, you may have a case of financial elder abuse. If any documents were forged, the trustee could face both civil and criminal charges.
The attorneys at DeLoach, Hofstra & Cavonis can meet with you to discuss your legal concerns and help fight for what you deserve. Simply fill out the quick contact form on this page to set up a consultation and get answers to your questions.
What is voluntary guardianship in Florida?
Most people who come to us to establish guardianship are relatives of a loved one who is incapacitated. However, some family members realize that they're incapable of handling certain financial matters on their own, and wish to surrender control of their affairs willingly. If you're unable to manage your finances, Florida law allows you to seek voluntary guardianship over property and assets.
Benefits of Voluntary Guardianship in Florida
The greatest benefit of guardianship is that it helps to protect your assets from those who would take advantage of you if you suffer an illness, are diagnosed with dementia, or have a progressive health condition that prevents you from making your own financial decisions.
There are other advantages to voluntary guardianship of property, including:
- Choosing your guardian. People suffering from illness may not recognize their inability to handle their affairs until it’s too late, forcing their families to step in and begin guardianship proceedings. A voluntary guardianship gives you the ability to choose who will serve as your guardian now, instead of taking a chance that a relative you might not trust will seek guardianship later.
- Setting your own limits. Taking action now allows you to control how much of your property is handled by your guardian. You may give your guardian authority to manage specific assets, such as stocks, or the entirety of an estate, and can choose how long the voluntary guardianship remains in effect.
- Protection of the courts. If you simply hand over control of your finances to a family member, there are no restrictions in place to prevent them from using your assets for their own gain. Voluntary guardianship is supervised by the courts, so your chosen guardian will be legally required to manage your affairs in a way that benefits you and your estate.
You should know that the state of Florida only recognizes voluntary guardianship over property. A voluntary guardian won't be able to make medical decisions on your behalf nor choose where you'll live. If you wish to give your guardian medical authority, you should consider including a durable power of attorney as part of your estate plan.
When would you want a Voluntary Guardianship?
Most estate planning is done to avoid any type of guardianships, but there are times when estate planning alone cannot stop people from hurting themselves. Here is an example of when we would think a voluntary guardianship would be helpful:
Mom, age 84, is getting forgetful but is still legally competent. She has a trustworthy daughter who lives locally but she also has a difficult son with "spending problems" who shows up to beg his mother for money. Mom is just not able to say "no" to lending (or giving!) her son money. The son has even taken mom to see an attorney to try and become her power of attorney. While mom is competent, placing her assets under a voluntary guardianship may be the best way to make sure mom cannot take her own money and just give it to her son.
Alternatives to a Voluntary Guardianship
While every situation is different, it is possible that a good estate plan can prevent a guardianship, such as through creating a revocable living trust and naming a trusted person as the trustee. But this has limitations if, for instance, the elder is subject to bad influences from close family members, as an example.
We Can Help
The attorneys at DeLoach, Hofstra & Cavonis can meet with you, listen to your concerns and help discuss options to make sure you or your loved one is protected. We can help establish voluntary guardianship if necessary, and ensure that your wishes will be followed. Simply fill out the quick contact form on this page to set up a consultation and get answers to your questions.
How Can I Stop My Loved One From Writing Checks?
We frequently receive questions regarding children trying to help when their parents going starting with dementia or Alzheimer's. The question is frequently something like:
I have durable power of attorney for my mother, but she keeps writing checks and making poor financial decisions when I’m not around. What do I do?
We have seen situations like this many times - Mom or Dad is getting forgetful, some type of dementia, and is not spending her money well. He or she may be writing checks to charities, scammers, needy family members, etc.
So, while durable powers of attorney are an important part of a well-rounded estate planning, they do have one major shortcoming: A durable power of attorney appoints an agent to act on behalf of the Principal (e.g., Mom or Dad), but it does NOT stop the Principal from still conducting business on his or her own. We frequently say that a durable power of attorney is a delegation of your rights, but it does not actually take away your rights.
The big picture is that a durable power of attorney is not really enough to stop someone with dementia from being taken advantage of. The power of attorney cannot stop mom/dad from writing checks/paying bills. There are some things that can help in these difficult situations:
Set Up a Revocable Living Trust
If Mom or Dad does not already have a revocable living trust, then the durable power of attorney may allow the child to set up and fund a revocable living trust in order to help Mom or Dad. Florida law says that a durable power of attorney executed after October 1, 2011, must specifically be initialled to allow the power of attorney to execute a living trust on mom/dad's behalf. Assuming this power is available, as power of attorney, the child may be able to transfer the parent’s assets into the trust and then manage the trust as trustee. Only a trustee can conduct business on behalf of a trust, therefore, the parent would not be able to write checks or conduct financial transactions for any assets that are in the trust.
Of course, we strongly recommend that you consult with an attorney regarding this option and whether the child is legally authorized to establish a trust on your parent’s behalf.
The next step may be to consider an adult guardianship proceeding. A guardianship proceeding will include an incompetency hearing. If the court finds your parent to be incompetent, the clerk of court will issue an order of such finding and will appoint a guardian to manage your parent’s affairs. You can then give copies of the court order to all banks and financial institutions where your parent holds accounts to notify the bank or financial institution that your parent has been declared incompetent by the court and no longer has legal authority to conduct transactions on his or her own behalf.
We typically recommend guardianships as a last resort only - if Mom/Dad is highly functioning (i.e., can go to the bank themselves and refuse to give up the car keys/check book), is not recognizing their own dementia, for instance, or if they are subject to elder exploitation. Florida also has an elder exploitation injunction that can help people when they are being exploited.
We Can Help!
You may be struggling to help your loved one make the right decisions, hitting roadblocks, looking for Medicaid, waitlists in trying to get your loved one placed in an appropriate facility, or constantly fighting with doctors, hospitals (or even other family members) because you don’t have the necessary legal or financial authority to oversee your loved one’s affairs and/or care.
Solid legal and financial planning is your answer and can help you put an end to all of the confusion and overwhelm that you currently face.
If you read this, you may want to read:
- How Your Estate Plan can help prevent elder exploitation
- When Durable Powers of Attorney Cannot Prevent a Guardianship in Florida
- Emergency Temporary Guardianships in Florida
What should I say to an insurance adjuster after an accident?
I recommend that victims never talk to an at-fault driver’s insurance company, no matter how much an adjuster calls you or attempts to contact you. However, it may be necessary to coordinate with your own insurance provider after a car accident to make repairs to your vehicle. Although your insurer should be working for you, you must still be careful what information you provide.
Keep This in Mind When Talking to Your Insurance Representative
Your insurance adjuster conducts a comprehensive review of the accident and works with the at-fault driver’s insurance company to settle any claims. It's still in your insurer’s best interest to pay as little as possible, and any mistakes you make after a crash can give it a reason to reduce your payment.
When it comes to dealing with your own insurance agent, you should:
- File a claim as soon as possible. Call your insurance company as soon as possible following a car accident. Most companies have a dedicated claims hotline where policyholders can report accidents day or night. Your insurance representative should explain your coverage and ask for a few basic details, such as the location of the accident and the name and insurance provider of the other driver.
- Discuss vehicle repairs only. Your own insurer handles the property damage portion of your claim. This can include towing your vehicle, finding a body shop nearby, providing you with a rental car, and making satisfactory repairs—or replacing the vehicle if it's a total loss.
- Don’t talk about your injuries. If you have uninsured/underinsured motorist insurance, your auto insurance provider becomes liable for your injury damages if the other driver’s insurance isn’t enough to cover your medical costs.
At DeLoach, Hofstra & Cavonis, P.A., we secure the rightful compensation you need to put a car accident behind you—and we don't collect any fees until your case is won. If you have any questions, please fill out the form on this page, and a member of our injury team will get back to you immediately. And of course, you can always call our office at 727-777-6842.
If I have a good estate plan, can I avoid a guardianship proceeding altogether?
For the most part, yes. But as is always the case, the answer is “it depends.” As in cases where an estate plan is not updated to adjust to changing life circumstances. An estate plan is never a “set it and forget it” type of thing. Here is one example:
A married couple in their sixties, nearing retirement, with one adult daughter makes an estate plan. As part of the estate plan, the couple appoint each other the agent on their respective Powers of Attorney, and their adult daughter as the only successor agent.
In the ensuing years, their daughter predeceases each of them. Many years later, now in their 80s, the husband becomes incapacitated, and while serving as the husband’s agent under the Power of Attorney, the wife (the “caretaker spouse”) dies. In this tragic, but not uncommon example, the last to survive is incapacitated, with nobody authorized to manage his affairs through the Power of Attorney. A guardianship will need to be created to manage the health and finances of the surviving husband.
Importantly, it should be noted that even this example could have been avoided if the couple simply updated their Power of Attorney at the death of their daughter by adding one (or two) successors (i.e. grandchildren, nieces, nephews, etc.). The takeaway being that an estate plan needs to be revisited by everyone in order to account for the various changes in circumstances life brings.
Further, one of the key ways to avoid a guardianship is by creating a durable power of attorney. This document allows the person of your choice the ability to make your legal and financial decisisons. Here, you can read about how a good durable power of attorney has its own limitations in preventing a guardianship.
Another key aspect of estate planning involves elder exploitation. Here, you can learn about how a good estate plan can help prevent elder exploitation.
If you need help updating your estate plan, elder exploitation or have questions about guardianship for your loved one, please do not hesitate to contact us.
How Is the Probate Estate Closed?
Once all assets have been gathered, inventoried, the 90 day creditor’s period has run, and payment of claims, if any, have been made, the estate can usually start making the distribution of assets. Interested parties are provided a Petition for Discharge, setting forth the personal representative’s fee, attorney’s fees, estimated final costs, and an accounting of all of the estate’s income and expenditures. As all of the assets will be known at this point, the beneficiaries will receive the amount of their inheritance.
If all beneficiaries agree to the Petition for Discharge, the estate can be finalized quickly. Assets can then be distributed to the beneficiaries, costs paid, etc. In the event of problems, the beneficiaries have 30 days in order to make objection to the Petition for Discharge. If an objection is filed by a beneficiary, the probate court may require a hearing on the objection’s validity.
As previously discussed, the full probate process takes about 6-7 months from start to finish under most circumstances.
What Will I Need to Start the Probate Process?
After reviewing the decedent’s assets, the family will generally determine that they need a probate attorney to get things started. Sometimes a financial institution such as a bank or insurance company will inform the family that they need “letters from the court” or something to this affect. Before seeing an attorney, the family will generally want/need the following information:
- Original Last Will and Testament (if one exists)
- If the original cannot be found, the attorney will have a way of "proving" the copy
- At least original death certificate – short form (2 if real property is involved)
- Preliminary list of decedent’s probate assets
- Names and address of all persons named in the last will and testament, if known, or name/address of intestate beneficiaries
Once the probate attorney is hired, a petition for administration is sent to the court. If all works well, the court then issues letters of administration, which allows the personal representative the legal authority to act on behalf of the estate.
The process mentioned is for a formal probate administration. If the estate is simple and worth less than $75,000, then a summary administration may be available, although the documentation needed for a formal probate is the same as that of a summary.
- Original Last Will and Testament (if one exists)