Tierra Verde Probate Attorney
We are your Tierra Verde Probate Attorney. Here at James R Kennedy Law we have handled countless probate cases over the years and are happy to assist you.
The procedure of transferring assets which are in the decedent’s sole name to the beneficiaries is known as Probate.
The process involves notice to creditors to be published and formal notice sent to all known creditors.
If your loved one died with a will the probate process simply the instructions left in the Will. If there is no will the deceased is said to have died intestate.
The estate will have to be settled and property distributed according to the Florida Statutes, http://www.flsenate.gov/Laws/Statutes/2016/Chapter732/Part_I which basically follows bloodlines beginning with the surviving spouse, children, parents, then brothers and sisters. However, the details of each case must be analyzed.
There are different types of probate:
- Disposition without Administration –
- Summary Administration –
- Formal Administration –
Fees are usually based on Florida statutory guidelines (Fla Stat. §733.6171) http://www.flsenate.gov/Laws/Statutes/2016/733.6171
Probate usually takes about six months to complete, however the Court allows up to one year prior to requiring an extension be filed..
Losing a loved one can be an time for the entire family. We are able to render assistance answering the many questions that invariably come up – such as:
- What kind of estate will I need?
- Do I pay bills of the deceased?
- Who pays for the funeral expenses?
- What happens to the bank accounts?
- How can I access the deceased’s residence and important papers?
There is no substitute for an experienced attorney, who provides personal service, understands the Statutes and will lead you through the process. Mr Kennedy has that experience and will be happy to assist and make sure that everything is done in a timely manner and in accordance with the law.
We offer a free initial consultation either by telephone or live in person. Call us today.
Estate Planning
If you have not prepared, updated and/or revised your Will, this would be a good time to do so.
To formulate an appropriate estate plan, it is important to understand the nature, value and title of the assets, along with understanding who you desire to be the beneficiaries of your estate.
Depending on the assets, and specific facts of the beneficiaries, whether minor children, older adults or charities, there may be specific benefits and/or detriments of deciding which estate plan is best for you.
There are also various strategies to be considered. The most important aspect of estate planning is to design a personalized plan which fits your individual needs and accomplishes your individual desires.
As a Florida resident under current law, one does not have to worry about estate or inheritance taxes unless the assets in the estate exceed $5,000,000.
In addition to your Last Will and Testament you should consider Advanced Directives.
You should have the right to make your own care decisions. Making those decisions can sometimes be difficult.
- What are my options for care?
- When and what types of treatment to refuse or accept?
- Whether or not to resuscitate?
There may be times whether because of an accident, injury or illness, you may not be able to make sound decisions about your health care. However, decisions still need to be made regarding your treatment and care. Advanced Directives outline who can legally speak on your behalf and see that your wishes are carried out.
If you are unable to speak for yourself, Advanced Directives are helpful legal documents that give you a way to make your wishes known about your health care. Advanced Directives tell your doctors, healthcare workers and family what types of care you would like to have, and the person you would like to speak on your behalf, if you are unable to make medical decisions.
Advanced Directives include the following:
- Living Will
- Designation of Healthcare Surrogate
- Power of Attorney
- Pre-Need Guardian
If you establish Advance Directives, make sure members of your immediate family know about them and where they are located. You will also want to share a copy with your primary care physician to include as part of your medical records, and then provide a new copy if your directives change. Be sure to also bring a copy with you if you are admitted to the hospital.
We offer a free initial consultation either by telephone or live in person. Call us today.
Advanced Directives
An advanced directive is a document which is prepared and designed to give specific instructions upon certain events occurring.
It is important for all individuals to have advanced directives. The time to prepare these documents is before there is a need for them.
- Designation of Healthcare Surrogate:
A Designation of Healthcare Surrogate nominates someone of your chose as a “healthcare proxy.” This allows you to appoint another adult to make decisions on your behalf if, and only if, you are unable to make these healthcare decisions on your own.
It is usually recommended that you appoint someone who knows your wishes and is willing to carry them out, especially regarding your personal, religious, moral and cultural beliefs. If you are incapacitated, your health care surrogate will have the authority to make all the medical decisions regarding your health care.
It is also important to nominate an alternate in case the original person nominated cannot or will not act on your behalf.
- Living Will:
A living will applies upon your doctor making a determination that additional medical treatment will not lead to recover and will only artificially prolong the natural act of dying.
A living will is a written, legal document that spells out medical treatments you would and would not want to be used to keep you alive, as well as other decisions such as pain management or organ donation. It is only used if you are terminally ill or permanently unconscious.
It’s common for a Living Will to direct that “palliative care”—that is, care to decrease pain and suffering—always be administered, but that certain “extraordinary measures,” like cardiopulmonary resuscitation (CPR) not be used in certain circumstances.
A Living Will will be enacted only when your attending physician along with a consulting physician determine you are:
1) Unable to make your own medical decisions and are unlikely to regain this ability.
AND
2) In a terminal persistent vegetative state, an end-stage condition, or in any other condition that you specified in your Living Will.
A living will can be revoked at any time. The document can take effect as soon as it’s signed, or only when it’s determined that the person can no longer communicate his or her wishes about treatment. Even if it takes effect immediately, doctors will rely on personal communication, not a document, as long as possible.
It is also important to nominate an alternate for this document in the event your original nominated individual cannot or will not be available to act on your behalf.
- Pre-Need Guardian:
A pre-need guardian allows an individual, while competent, to nominate who they desire to be their guardian if they become declared incompetent in the future.
A probate Judge will give great deference in appointing a guardian when a person has been declared incompetent.
- Durable Power of Attorney:
When discussing the potential of a client executing a durable power of attorney, I caution clients that they need to have explicit trust in anyone they appoint as power of attorney. If the wrong person receives a power of attorney, they could cause financial devastation.
A person who receives a power of attorney has the ability to take any and all legal action the individual themselves could take such as selling their house, emptying their bank account and borrowing money in their name.
The benefits of a durable power of attorney is that there would be someone legally authorized to pay your bills, enter into contracts on your behalf with healthcare facilities and perform all the necessary acts if you are unable to so yourself.
If there is a durable power of attorney, a formal guardianship may be able to be avoided, but in my opinion, the explicit trust is a necessary element, A Power of Attorney must be entered into while you are competent to do so.
A power of attorney ceases upon your death and can be revoked at any time.
- Limited Power of Attorney:
A limited power of attorney is limited in either scope or duration. A limited power of attorney may allow someone to perform a legal act for you, such as closing on the sale of a piece of real property if you are unavailable for the closing. It may also be limited in duration in that it only empowers the person to act on your behalf for a limited period of time and it expires on a specific date or after a specific act is accomplished.
These are examples of why an individual consultation is very important to make sure the document drafted accomplishes the objective of the client.
Every individual should have advanced directives and an Estate Plan – an Estate Plan personalized for you that you actually understand.
We offer a free initial consultation either by telephone or live in person. Call us today.
Last Will and Testament
Florida statutes have very specific requirements relating to what is considered a valid will. http://www.flsenate.gov/Laws/Statutes/2016/Chapter732/PART_V/
Florida Statutes also allow for a will be self-proving which alleviates the need to locate the witnesses to the will in order to obtain the necessary sworn statement required by the statute. http://www.flsenate.gov/Laws/Statutes/2016/732.503
All wills prepared in my office are self-proving wills which contain the necessary statutory language and incorporates the affidavit of the witnesses in the will.
When there are minor children it is important to nominate potential guardians and it may be appropriate to incorporate language to create a testamentary trust to avoid all of the proceeds being distributed to a child upon their 18th birthday. Selecting a guardian would be the individual who would assume the parental responsibilities. When nominating a trustee, it would be the person who would be making the financial decisions. These may be different people.
A parent has the ability to nominate in their Last Will and Testament, who they would like to be the guardian of any minor children. It is always important to nominate alternates.
It is important to discuss these issues in detail to avoid unattended consequences. I always have an individual meeting with my clients to insure I understand the individual circumstances and that my clients understand their choices.
In a will you also nominate who you desire to be your personal representative who will become the person that will have the legal rights and fiduciary obligations to administer your estate.
You do not need to have significant wealth and property to need a will. If you are not familiar with the Statutes and you do not have a Will, your last wishes may not be carried out.
- Do you know how Florida views step-children?
- Have you been divorced and still have your ex-spouse as your beneficiary?
- Do you have a close friend or distant relative that you want to remember when you pass?
- Are your children too young to handle an inheritance?
These are the types of questions that I can discuss with you to determine the best estate plan for you.
In addition to drafting your will, I will help you keep your will updated or change your will, if desired. Changing a will can be a delicate process that can cause disputes during estate administration if it is not done correctly. If you are of sound mind and understand the impact of your decisions, we can help update your will to designate a new heir, reallocate assets and convey other changes
We offer a free initial consultation either by telephone or live in person. Call us today.
Living Trusts
My expectation is that you will understand the differences between a Last Will and Testament and a Revocable Living Trust and how these differences personally affect you.
A revocable living trust has many advantages over a simple will. These advantages include, but are not limited to:
- Avoiding probate
By having a revocable living trust one may be able to avoid both the costs and fees and the time delay of probate. In establishing a living trust, one transfers the appropriate assets into the trust. The trust becomes a legal entity, but it does not restrict an individual’s ability to use or access their assets.
The successor trustees, who are appointed in the living trust, have the ability to transfer the assets of the trust to the designated beneficiaries.
- Maintain privacy
Unlike a will, which is required to be filed with the Court and become a public document, a trust can remain private, and the terms of the trust remain confidential.
- Protection from creditors
Since a revocable living trust is its own entity, it is able to provide protection from most creditors of an individual, both during your lifetime and upon your death.
- Medicaid planning
Since a living trust is it owns entity, it formally owns the assets in the trust. If there becomes a health event which would justify a Medicaid application, and the assets have been in the trust for more than five years, that is more than the sixty month look back period required by Medicaid, the assets in the trust do not have to be spent down for an individual to qualify for Medicaid.
This allows the assets of the trust to be available to provide services above and beyond those available through Medicaid, while also protecting the assets so that they may be distributed to your desired beneficiaries as opposed to being exhausted by medical expenses.
The consultation which I have individually with all my clients, allows for the structure of a plan that meets the individual needs and provides the greatest amount of protection of assets available.
When I prepare a living trust for a client, we also always prepare a Last Will and Testament, which is referred to as a pour over will. This is done to provide a safety net to administer any assets which may be inadvertently not titled in the trust name or which may be intentionally excluded from the trust in that we avoid placing assets which have a potential to cause liability into the trust.
We offer a free initial consultation either by telephone or live in person. Call us today.
Guardianship
There are two different types of guardianship:
- Guardian of the person and
- Guardian of the property.
When a guardian is appointed for both the person and the property it is referred to as a “plenary guardian.”
In establishing a guardianship it is a two-step process. The first step is a determination of a person’s competency. Once a person is declared incompetent, the second step is for the Court to appoint a guardian. If the person has executed a Pre-Need guardian, the court would give that great weight in selecting who the guardian should be.
A guardian of the person is in charge of the day to day care and medical treatment of the Ward, that is, the person declared incompetent.
All guardianships are monitored by the probate court, and a guardian is required to file an annual plan and report with the guardianship court.
Once a person is declared incompetent, or found to not be able to administer their own finances, a guardian of the property may be appointed. A guardian of the property is in charge of administering the assets of the Ward and paying their reasonable and necessary bills.
The guardian of the property is required to file an annual accounting with the court.
Minor Child Guardianship
Guardian of the person – If for any reason a minor child is unable to be with a parent, such as both parents passing away or losing their parental rights, the court has the authority to appoint a guardian of the person.
Once appointed, the guardian has the rights and responsibilities that a parent would have in caring for the minor child.
A parent has the ability to nominate in their Last Will and Testament, who the guardian should be. It is always important to nominate alternates.
In my consultations with my clients, it is frequently discussed as to a married couple as being nominated as guardians and what would happen if that couple were to divorce or one of them should pass away, who would be nominated as the guardian or would another couple be nominated. This is an example of the benefits of an individual consultation with a client in that I am able to raise questions that people may have never considered.
Guardian of the property – Effective July 1st, 2006, Florida Statutes §744.301 (E) was amended to require a court appointed Guardian when the aggregate of a settlement to a minor child exceeds $15,000.00.
If your child receives a large sum of money, be it from an injury settlement or an inheritance, a guardian may be needed to safeguard this money until the child reaches an age of majority where he or she can manage themselves.
Once a guardian of the person or property is appointed by the court, they are required to file an annual report and/or accounting with the court.
Do you need assistance in establishing an estate on behalf of a loved one? I can provide you with personal and individualized legal guidance every step of the way, taking the time to discuss all of the potential legal solutions that are available.
My practice of law, for the past 33 years, has included Personal Injury, Probate, Wills, Trusts and Estate Planning, along with Family Law.
If I can be of assistance in matters that involve probate or guardianship issues, please contact me.
We offer a free initial consultation either by telephone or live in person. Call us today.