Probate and Estate Planning
Do You Have A Will?
Our firm can assist you with your tax and estate planning and preparation. We serve our client’s needs in these following areas of Probate and Estate Planning:
• Advising clients with regard to estate planning matters, which includes drafting of last wills, family limited partnerships, trusts, grantor-retained annuity trusts, qualified personal residence trusts, charitable remainder trusts, creation of foundations, charitable lead and annuity trusts and gift giving programs that are intended to reduce estate taxes.
• Tax planning for individual’s business and personal transactions.
• Building partnerships, joint ventures, business trusts, limited company liabilities and other domestic and international business individuals.
• Offshore estate planning for U.S. and foreign individuals.
• Giving advice to foreign nationals who are not U.S. taxpayers of the consequences in doing business or investing in the U.S. in regards to U.S. federal income tax law.
• Provide guidance to U.S. taxpayers with regard to U.S. federal income tax and the non-U.S. tax consequences of doing business or making business investments overseas.
• Giving advice and recommendations to clients with regards to real estate purchases or acquisitions, restructuring workout related transactions and financing.
• Informing and advising clients with regard to state and local tax issues.
• We also represent clients/taxpayers in tax examinations and protests before the IRS appeals office.
Our attorneys can assist you with probate, including disputes among beneficiaries who want to contest and challenge personal representatives, as well as challenges to the rights of the beneficiaries. We also handle construction of wills and other documented testaments such as; estate tax court proceedings, fraud and gratuitous influence claims, fee disputes, incompetency claims and other related matters or issues that may come up in connection with the probate and trust administration process.
Generally, probate is a process in which it is supervised by the court in order to identify and gather the deceased’s assets, administration’s claims and expenses, distributing assets to the beneficiaries and paying taxes. The Florida Probate Code can be found in Chapter 731 to Chapter 735 of the Florida Statutes/Decree.
Why Is Probate Required?
Probate is required to pass ownership/rights of the deceased’s probate assets to the deceased’s beneficiaries. If the will is declared to probate in the Court, it will be unsuccessful in passing the title to the deceased’s beneficiaries, unless the deceased left a valid will. If the deceased left no will, probate is needed to pass ownership of the deceased’s assets to those individuals who have the right to accept them under the Florida law.
Probate is essential to conclude the deceased’s financial affairs following his or her demise. Management or administration of the deceased’s estate/land guarantees that the deceased’s creditors are paid, provided that certain processes are followed.
What Is A Will/Testament?
A will/testament is a writing or document that was signed by the deceased and witness/s that meets the requirements of Florida law. In the deceased’s will/testament, he or she can name the person/s with whom he or she wants to pass his or her probate assets. The deceased can also assign a personal representative which, in legal terminology, is the “executor”. This will be their own choice when it comes to administering the estate or property.
The will takes precedence over the default stipulations of Florida law, if the deceased’s will disposes of all the deceased’s probate assets and assigns a personal representative. In the case that the deceased did not leave a valid will/testament, or if the will/testament fails or fall short in some value, the identities of the individuals who will receive the deceased’s probate assets, as well as who will be chosen as the personal representative of the deceased’s probate estate/property as will be determined by Florida law.
What Can Be Achieved By A Will/Testament?
• You will decide who you want to give your property/assets to and not the law who will make the choice in your behalf.
• A trust may be included in a will/testament wherein the estate or a fraction of the estate will be kept intact with which the profit be distributed or accumulated for the benefit or to help the family members and others. Minors can be cared for with no cost of court proceedings for custody of property.
• Real estate and other assets/properties can be put on sale without court proceedings as long as your will sufficiently authorizes and supports it.
• You can name or assign the personal representative/executor of your will, as you like, given that the person you choose can be eligible under Florida law. A personal representative/executor is the person who manages an estate, and this may be a bank, trust company or an individual, subject to certain restrictions.
• A guardian may be named or assigned for children who are minors.
• You decide or choose who bears any tax burden, instead than the law/court making that resolution for you.
• You may make or give gifts/contribution to charity effective at the time of your demise.
What are the Consequences of Not Leaving a Will/Testament?
In the event that you die without leaving a will, which is called “dying intestate”, your property or assets will be distributed to your heirs according to the rule set by law. Your property will not go to the state of Florida, unless there are no heirs/inheritors by law, which is very improbable.
This means, that if you do not leave a will, the inheritance law/statute will determine who will receive the property that you left behind. The inheritance law/statute encloses a firm rule and makes no exclusion for extraordinary needs. The courts appoint a personal representative/executor, familiar or unfamiliar to you, to manage your estate/property in the event that there is no will. The management of your estate/property may be subject to greater supervision by court and the expense of probating may bigger than if you had arranged your estate/property with a will.
Does A Will/Testament Increase The Costs of Probate?
A will/testament will not affect or increase the cost of probate. If a property needs to be governed or there are taxes that need to be paid or both, the subsistence of a will does not affect or increase probate costs or expenses. In a lot of cases, a will reduces probate expenses. In the event that there are valid or personal property/assets that need to be transferred at the time of your death, the probate court will have the authority to ensure that your property/assets will be transferred appropriately, either with accordance to your will, or in the event that there is no will, it will be distributed according to the inheritance statute/law.
Therefore, even if you have no will, your heirs/inheritors are required to go to court to manage your estate. They also need to obtain an order from the court, determining your legal heirs/inheritors, or obtain a resolve that administration is not needed. These types of procedures are a lot more costly than administering your will, as an appropriately drawn will names the beneficiaries and outlines procedures to make the administration process easier.
Who is Eligible to Prepare a Will?
An individual who wants to have his or her will drawn will need the services of a skilled and experienced professional individual. With exception of ominous emergencies, these important tasks should not be handled by anybody but the professionals.
The preparing of a will involves making decisions that need professional judgment which can be obtained only by years of study, training and experience. Only professional lawyers can evade countless consequences and give the best possible advice that can best suit each unique situation of every individual. Also, to properly complete an estate plan, an experienced lawyer will be able to organize the use of other skilled professionals, such as insurance specialists, tax accountants, actuary and investment advisors. Furthermore, there is no such thing as a “simple or plain will”. Even small estates can have complications only an experienced attorney can anticipate.
Guardianship
Guardianship is a lawful proceeding in the courts of Florida in which a guardian/custodian is assigned to implement the legal/lawful rights of an incapacitated individual.
What Is A Guardian/Custodian?
A guardian/custodian is an individual/person or foundation/institution that was assigned by the court to take care for an “incapacitated” person which is called a ward and/or for the ward’s assets or/and inheritance.
How Is A Person Established To Be Incapacitated?
A petition to determine another person’s incapacity can be filed by any adult with the court, placing forward the accurate information in which their belief was based in the person’s incapacity. The court then assigns a commission of two experts, typically physicians and a lay person to analyze the person and inform the court of their findings.
The court also assigns a legal representative to represent the person alleged to be incapacitated.
The court will dismiss the petition in the event that the examining committee finds that the alleged incapacitated person is not really incapacitated in any way.
On the other hand, the court will schedule a hearing to determine whether the person is completely or partially incapacitated, in the event that the probing committee finds the alleged incapacitated person to be unable of exercising certain rights. Generally, a guardian is appointed or assigned at the end of the incapacity hearing.
Who May Serve As Guardian?
Any adult resident of the state of Florida can serve as a guardian. A close relative/next of kin of the ward or minor who does not live in Florida can also be considered a guardian. Individuals who have been convicted of a crime or individuals who are incapable to fulfil his or her responsibilities as a guardian cannot be assigned. A non-profit charitable or religious institution, a public guardian and institutions such as a bank trust department can be appointed as a guardian, with the exception that the bank can only act or perform as a guardian for the property of the minor/ward. The court can consider the wishes stated in a written statement or at the hearing by the incapacitated for preneed guardian.
What Does A Guardian Do?
A guardian/custodian who is granted authority to take over the property of the ward/minor shall take an inventory of the property, use it in an investment carefully, use it to support the ward and file a yearly comprehensive report with the court. The guardian must also acquire court support for certain financial matters. The ward’s guardian may apply the rights that have been taken away from the ward and entrusted to the guardian, such as providing mental, medical and personal care provisions, and determining and choosing the best kind of place where his or her ward will reside. The guardian should also present to the court a comprehensive plan for the ward every year.
Is A Guardian Responsible?
Yes, guardians should be represented by a legal representative, such as an attorney who will serve as attorney of record or documentation. As a rule, guardians need to secure a bond and possibly be required to complete a training program approved by the court. All the yearly reports of the guardians regarding the person and his or her property will be reviewed by the clerk of the court and then present them to the court to have it approved. In the event that a guardian does not carry out his or her responsibilities properly, he or she may be removed from the guardianship of a person.
Is There An End To Being A Guardian?
There is a possibility when a person makes progress, completely or partially from the state that made him or her to be incapacitated, the court of law will have the ward re-assessed and can reinstate some or the entire rights of the person.
Is Choosing A Guardian The Only Way Of Assisting An Incapacitated Individual?
Not necessarily. The state of Florida law requires the use of a lesser restricted options to look after individuals who do not have the capability to take care of themselves, including managing of their financial matters. An individual who produces a strong power of attorney or a revocable living trust and health care ruling in advance may not need a guardian in the event of incapacity.
How About Guardians for Minors?
The parents are the child’s natural guardians, and may act for the child, in general. The court must appoint a guardian in the event that both parents die or become incapable of taking care of their child or if a child/minor receives proceeds of a lawsuit or insurance policy and an inheritance exceeding $15,000 dollars. The parents or a surviving parent can create a written statement assigning a guardian for the child and/or his or her property and file it to the Clerk of the Court, in the event when both parents die or become incapacitated. A guardian/custodian can also be assigned in a will/testament, where it is stated that the child is a beneficiary.