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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Do I need to hire an attorney to probate assets in Florida?
Under most circumstances, you will need to hire an attorney to assist you in the probate process. First, you will know you have to probate an asset when it is in the decedent's own, individual name. This includes bank accounts, stocks, bonds, land and more. The family will not be able to take control of these assets without following the exact rules as set forth in the Florida Probate Code. We have more on probate assets here.
There are four main types of probate, some of which you will need an attorney:
- Formal Administration: This main probate process will definitely need an attorney. The process is described in greater detail below.
- Summary Administration: The family will likely need an attorney due to the complexity.
- Disposition without Administration: This process is designed to operate without probate.
- Ancillary Administration: This is either a summary or formal administration depending on the size and complexity.
To review, a Formal Administration definitely need an attorney while a simple summary administration should have an attorney due to the complexity. We have seen many people over the years try to go to court without an attorney and they just create problems and frustrations for themselves.
Also, the probate process is difficult and you will need a professional to help you. The following is a list of the general steps of a formal probate administration which can be quite complex, even to professionals. TNot every estate will need every step, but this is a good outline for the entire process:
Step 1: Locate Original Will (when applicable); list probate assets and addresses of beneficiaries;
Step 2: Obtain original death certificate from funeral home;
Step 3: Find and hire a reputable probate attorney;
Step 4: Petition the probate court for appointment of Personal Representative;
Step 5: The probate court issues Letters of Administration and a bond for the Personal Representative;
Step 6: Send notice of administration to all heirs;
Step 7: Collect information from all heirs to administer the estate;
Step 8: All outstanding bills are collected, sometimes over a period of months;
Step 9: The Personal Representative publishes in a newspaper notice to creditors, and provides direct claims notices to any known creditor of decedent;
Step 10: Assets gathered and consolidated by the Personal Representative, typically placing the assets with the attorney’s office for accounting purposes;
Step 11: Assets inventoried within sixty (60) days of the appointment of Personal Representative;
Step 12: Determine if estate tax return is needed;
Step 13: Wait ninety (90) days for the published notice to creditors;
Step 14: Decide on the validity of any estate claims; dispute those that are invalid and pay those that are valid;
Step 15: File the Declaration of Homestead after the ninety (90) day creditors’ period runs;
Step 16: Gather receipts from creditors after paying valid claims;
Step 17: Defend/settle lawsuits from creditors who sue the estate;
Step 18: Sell/dispose of property, at Personal Representative’s discretion;
Step 19: Pay any specific bequests to beneficiaries, if money allows;
Step 20: Determine final distribution percentages;
Step 21: Calculate attorney’s fees;
Step 22: Calculate Personal Representative’s fee;
Step 23: Pay all outstanding estate costs;
Step 24: Account to the beneficiaries on all costs, outstanding bills, and fees;
Step 25: Either receive consent from beneficiaries or wait thirty (30) days after final accounting sent to the beneficiaries; and
Step 26: Petition to close estate and follow plan of distribution as submitted to heirs and the probate court.
As you can see, the probate process, with all of these required steps, can be quite cumbersome, although a good probate attorney would generally make the process relatively painless under most circumstances.
If you would like to know more about the Florida Probate process, please download our free book, Navigating the Florida Probate Process today.
If you have any questions, we would be glad to provide you a free initial consultation to see how we can assist you and your family.
Why Do We Need To Review Your Assets In Creating Your Estate Plan?
When new or returning clients come into our office to create their estate plan, such as through wills, trusts or other legal instruments, we typically ask them to bring a list of all their assets. We do this for a number of reasons as we need to know if your estate is taxable, whether you have a large or small estate that will provide for long-term care and other contingencies as necessary, and we need to know the types of assets you own. All of these may drastically affect our approach to planning to meet your desires and how we implement your plan.
To help tailor an effective estate plan for your specific situation, consider the following general rules regarding distribution of your assets:
- Assets in your own, individual name are distributed according to your last will and testament. These could, potentially, include land, stocks, bonds, bank accounts, etc. Without proper planning these assets are distributed through the probate process after your death.
- Assets that are jointly held are generally distributed to the survivor/co-owner. Examples of these include land and a residence owned jointly by a husband and wife. Upon your death, ownership simply transfers to the survivor and are not subject to the probate process.
- Assets with beneficiary designations, such as life insurance policies, IRAs, 401Ks and annuities are distributed to the named beneficiary, regardless of the will's contents.
- Assets that are in your trust remain in or are distributed according to the trust, outside of the probate process.
With these four rules, you will note that your last will and testament may actually cover few of your assets. It is very common for people to include joint owners on land, bank accounts, etc., and have few assets in their own, individual name. This process, while it limits those assets that may be subject to the probate process, does carry some risk/reward implications which should be carefully reviewed with an attorney.
In conclusion, please make sure that you know how all of your assets are titled and how they would likely be distributed upon your death and not just the assets that are subject to your last will and testament. This can be a complicated subject and we are more than happy to sit down, review your assets and make sure your wishes are followed.
What Is a Title Examination?
A title is a legal document that indicates your ownership of a property. Title examination is a process where the chain of title is researched and reviewed to determine that the current seller has clear or marketable title to the property being transferred.
What Is the Difference Between a Will and a Trust?
A will and revocable trust are similar in that they both allow you to specify exactly how you want your property distributed to your heirs after you pass away. However, there are major differences that everyone should know, the following being the most important:
- Your last will and testament directs probate assets to specific heirs throught the probate process;
- While the revocable living trust directs trust assets to specific beneficiaries without the necessity of probate in the first place.
When creating your estate plan, you should consider whether you want a will based estate plan or a trust based estate plan. The general rules for these types of plans are as follows:
- A will based estate plan is good for:
- people who want to spend as little money as possible at this point in time;
- people with fewer assets;
- people with very simple estates;
- people who do not care as much about avoiding probate for their heirs.
- A trust based estate plan is best for:
- More complicated estates;
- People with more assets;
- People want to spend more money to help save their children even more money;
- People with land in other states;
- People who want to save money and make things easier for their children.
If you want to learn more about wills and trusts, please feel free to attend one of our free monthly estate planning seminars where I will discuss probate, wills, trusts, incapacity planning and more. We promise that it will be worth your time!
Does a Last Will and Testament Avoid Probate in Florida?
Having a last will and testament in Florida does not ensure that your assets avoid probate upon your death. A last will and testament distributes your probate assets to the correct beneficiaries. Your probate assets are assets that you own in your own, individual name. Your last will and testament tells the Florida probate court where these assets are distributed upon your death. These probate assets are distributed under the rules of the Florida Probate Code, which generally means you need to hire an attorney to assist your heirs with the process.
In creating your estate plan, you need to know where your probate and non-probate assets are distributed upon your death. Non-probate assets include jointly held property (land, bank accounts) or assets with beneficiary designations with payable on death designations (life insurance, annuities IRAs). These assets are not distributed according to your last will and testament but are instead distributed according to the beneficiaries thereon. This means that the last will and testament does not control these assets, which can lead to unintentional consequences with unplanned estates. As an example:
Mom has a falling out with her daughter and wants to disinherit her. Mother changes her last will and testament with her attorney so that daughter is disinherited. Mother does not change the beneficiary of her individual retirement account (IRA) which still names the daughter as a beneficiary. Upon mother's death, while her probate estate may not go to her daughter, the IRA will. The reason is that the last will and testament did not effect the IRA beneficiary designation.
If you want to learn more about estate planning or probate avoidance, please sign up and attend one of our monthly free estate planning seminars. We also have more information on estate planning and other elder law topics in our legal library.
What is the Best Way to Create a Last Will and Testament in Florida?
The best way to create a last will and testament is by working with an experienced estate planning or elder law attorney to assist you. The most important thing for anyone to know is that a last will and testament (defined under the Florida Probate Code) is not just a form or piece of paper. Your will may or may not control many or much of your assets and your attorney can help teach you about what your will does, and does not, do. Here is a general list of reasons to have an attorney assist you with your last will and testament:
- Peace of Mind! Working with an attorney to make sure you have made the right choices will give you peace of mind knowing all of your questions have been answered and your wishes will be followed through with.
- You do not know what you do not know - just because your will says it does not make it legal.
- Your will does not control all of your assets - your attorney can help clarify what this means.
- Your attorney should help make sure your will correctly interacts with your non-probate assets.
- Dying intestate (without a last will and testament) can create many problems for families and heirs.
- Your attorney can also assist you with a durable power of attorney, designation of healthcare surrogate and living will.
- Your attorney can discuss probate and probate avoidance as part of your estate plan.
- Even the correct will signing procedure is difficult. If your will is not signed in the exact legal way, it will be null and void, meaning your wishes would not be followed.
If you would like to learn more about wills and estate planning in Florida, please attend one of our free monthly estate planning seminars. We also have more information on probate and probate avoidance in our legal library.
What Is Probate in Florida?
Probate is the legal process of settling the estate of a deceased person and, more specifically, distributing the decedent's probate property to the rightful heirs. The probate process generally involves assets in the decedent’s probate estate, which includes only those assets in the decedent’s own, individual name. The probate process does not generally include assets that are jointly held with rights of survivorship and other assets distributed by contract such as life insurance, IRAs and 401Ks. These are distributed to the survivor or to the designated beneficiary without the estate’s involvement.
An example of probate and non-probate assets is as follows:
Mother, Mary, passes away owning the following assets:
- Stocks certificates titled in her name
- Rental property titled in her own name
- Bank account jointly owned with her daughter
- IRA with beneficiary designation to her daughter
In our example, the probate process only includes the rental property and the stocks because these are the only assets that are owned by the “probate estate.” This means that the heirs must hire an attorney to assist only with these two assets. The bank account would now be owned by the daughter as the survivor and the IRA is distributed directly to the daughter as well, avoiding the probate process and, ultimately, avoiding attorneys.
The probate court has jurisdiction only over the decedent's probate estate. The probate court’s job is to make sure the probate estate is settled in accordance with Florida law. The probate process generally has the following goals:
- Make sure the decedent’s creditors have the opportunity to be paid;
- Make sure the decedent’s taxes are paid;
- Make sure the probate assets are correctly distributed to the beneficiaries; and
- Make sure the decedent’s affairs are properly settled.
Most people would agree that the probate process itself has good goals. Most believe, for instance, that a decedent’s creditors should get paid before their heirs receive their money.
As the probate process is a legal process, an attorney will need to be hired to help go to court to properly follow the correct procedure.
How will Life Care Planning help ensure our loved one's assets are protected?
Life care planning looks at the elder's legal, financial and healthcare. Our stated goals are as follows:
- Make sure our client is getting the right care in the right setting;
- Make sure the client's caregivers (family) gets the right support in making the right decisions;
- Making sure our elder is using the appropriate government benefits, such as Medicaid, Medicare and VA benefits.
Thus, as parts of our life care plan, after making sure our client is in the right place getting the right care, we help make sure his or her assets are protected from the high cost of nursing home or assisted living care. We will look to Medicaid planning and VA Benefits planning to assist with these matters. This also means that any costs to paid to help the elder usually pays for itself many, many times over in good care, peace of mind and more.
Who Is a Life Care Plan For?
Dealing with your aging loved one can be very difficult. When your elder starts to go downhill due to dementia, stroke or other chronic illness, you may need help with a life care planning attorney. A life care planning attorney will help you and your loved one deal with a process that you are already going through.
Our first goal in life care planning is to help make sure our client, the elder, is getting the right care in the right place. We often come into difficult situations such as when the elder is no longer safe at home or after the elder has had a fall or a stroke. This is when things get most difficult as the family must try to advocate in a strange and complex medical system.
Our second goal of life care planning is to make sure our client's caregiver, whether a spouse or child or children, gets the help they need. Trying to find good medical care, good nursing homes, assisted living and other providers can be very difficult. Thus, life care planning is not just about helping the elder but we also help make the caregiver make difficult decisions.
In summation, life care planing helps both the elder by helping them receive good care while also helping the primary caregiver (i.e., the power of attorney/healthcare surrogate) by giving them the support they need. The reality is that there are few places to go in getting help in the long-term care maze - that is why we are here to help!
At What Point Should the Life Care Planning Be Developed?
Most people create a Life Care Plan immediately after a triggering event such as stroke or diagnosis of Alzheimer's or cancer. However, pre-crisis planning is ideal for families because you can immediately tap into the resources available and increase the possibility that your elder can remain in their home.
What Is Life Care Planning?
Life Care Planning is a new approach to dealing with issues created by long life and disability. It involves a team to help with the elder's:
Aspects of the aging process. When an elder is no longer able to live at home without long-term care, the elder, and his or her family, enter the long-term care maze. This maze is difficult and confusing to just about everyone.
The Life Care Plan places special emphasis on issues surrounding long life. The Life Care Plan connects your concerns about long-term care as you go through the later stages of your life with our knowledge and expertise at our law firm.
The Life Care Plan itself is a relationship and a planning process with our firm that changes over time as you and your circumstances change over time. Your Life Care Plan can provide the road map that allows you to follow through to achieve your quality of life and care and long-term care financing goals. There is no specific written document that encompasses the Life Care Plan, but it is our relationship, communication and goals that help guide us.
We have proudly had a Life Care Planning practice since 2010, helping save lives and providing peace of mind to hundreds of families.
Life Care Planning
Life care planning began in the field of personal injury litigation. The intent was to provide costs for care, equipment, supplies and other needs resulting from the injury.
Today, the definition and use of life care plans has evolved beyond litigation. In 1998, the International Academy of Life Care Planners and others described the life care plan as a dynamic document based upon published standards, comprehensive assessment, data analysis and research, which provides an organized, concise plan for current and future needs, with associated costs for individuals who have experienced catastrophic injury or have chronic health care needs.
A life care plan is a method to manage information about the individual. Families use a life care plan in elder care management as a guide to necessary services and resources and outcome evaluation.
For your Life Care Plan to be successful, all of us must have an understanding of your diagnoses,
Medical treatment, estimate, costs of treatment and services, factors affecting care outcomes, psychosocial implications, and ongoing health care and long-term care needs. We must be knowledgeable about community resources and eligibility for these resources. Furthermore, we must be able to identify and develop alternatives for care consistent with patient/family needs. A Life Care Plan represents the integration of these issues into a plan to meet individual needs.
There are three principal goals of the Life Care Plan that we help you develop and implement:
- We help make sure that you or your loved one gets good care, whether that care is at home or outside the traditional home setting. This is the most important of all goals, for it goes to the very heart of your quality of life in your later years. Your Life Care Plan is focused first on your good health, safety, and well-being.
- We help you make decisions relating to your long-term care and special needs. We are your resource of experienced, supportive, knowledgeable, and objective advisors.
- We help you find sources to pay for good long-term care. We work with you through the maze of choices and options to find the best, or often, the most comfortable solution to the asset protection problem created by the need to pay for quality long-term care.
Your Care Questions Answered
We will help you answer your questions about your long-term care and health care choices:
- What health care, chronic care, and long-term care services are available to me? How can I get the good care I need and desire, whether in my own home, in a residential community or assisted-living facility, in a child's home, or in a nursing home?
- How will financial and health care decisions be made for me if I cannot make them for myself? Who can I rely on to make sure that decisions to be made are the right ones?
- If I can't take care of myself, who will make sure my spouse continues to have a good quality of life?
- If there a health care crisis, what will we have to do? Where do we turn for the help we need?
- How do I know I am getting good care? Who will advocate and intervene for me if necessary to ensure my right to quality health care and long-term care?
A Life Care Plan helps you and your loved ones answer other pressing questions as well:
- How do I assure my financial security as I get older?
- What public benefits am I entitled to, and what do I have to do to qualify for them?
- Should I rely on Medicaid or other government benefits to help pay for my care? How do I apply for benefits?
- What kinds of insurance do I need? Should I buy long-term care insurance? Should I join a Medicare HMO?
- How and when should I distribute my assets? Can I save taxes and avoid probate?
- Do I have to spend all of my money on my care, whether in my home or in a residential care facility such as a nursing home? How can I protect my assets to take care of my spouse, to ensure I get good care, or to leave to my children?
- How do I provide for family members with special needs?
Your Road Map
Your Life Care Plan will be customized to fit your desires and needs. Your Life Care Plan can then provide you the road map to follow to achieve your care and asset protection goals. And, when changes occur, we stay with you every step of the way to help you shift to another road as it becomes necessary.
Your Life Care Plan therefore includes both elder law and care assessment and coordination services.
Come to one of our monthly seminars to learn more about how Life Care Planning can help you.
How much financial compensation can I expect to receive from a personal injury case?
It depends. There are several factors involved in determining the amount of financial compensation you will receive for your injuries. The factors include; the severity of your injuries, the length of time that you are disabled by the injury, the cost of your medical treatment, expected future medical expenses, emotional trauma, among others. If you are found to be partially liable for the personal injury, your financial compensation will be less.
The other person's insurance company has contacted me and wants me to sign documents and give a recorded statement. Should I?
No one should give a statement without fully considering the legal impact of this statement. Before giving a statement or signing any documents, you should consult with an experienced Florida personal injury attorney.
How do I know if I have a Florida personal injury claim?
You must be able to show that you were injured and that your Gulf Beach area personal injury was caused by someone else's negligent or harmful act.
What is considered a personal injury in Florida?
A personal injury in Seminole, Pinellas, or Tampa Bay area is a physical or mental injury to a person that is a result of someone else's negligence or harmful act.