Probate & Estate Administration

Estate planning involves the ultimate disposition of your assets after death. When you think estate planning you probably only think of Wills & Trusts, but estate planning encompasses other areas of the law like advanced directives, special needs planning, and asset protection planning. As a Florida estate planning attorney, my goal is to make sure that your wishes and intent are followed, whether in incapacity or death. My second goal is to make sure that your assets are protected at all times so it passes to your intended beneficiaries.

     Probate and Trust Administration Services

Formal Administration Florida

Formal Administration in Florida is typically needed when the assets of the deceased persons are in excess of $75,000 and the person has been deceased for less than two years. Formal administration is also needed when a real property will be sold through the probate process. You will need a Florida probate lawyer to help you with the probate administration of your loved one. The reason you need a probate lawyer is that formal administration has specific rules and deadlines that must be followed, specially as it relates to creditors.

Summary Administration Florida

Summary Administration in Florida probate can be done if the person has been deceased for over two years or if the assets are less than $75,000.

Summary is a simplified process because a lot of the time the 2 year statute of limitations to bring claims against the estate has run. The court is not as concerned with notice to all creditors and therefore the administration can be expedited.Although sometimes you can do a summary administration without a probate attorney, it is always recommend for you to seek the help of a Miami probate lawyer to assist you with the administration. You will definitely need a probate lawyer if real estate is involved. 

       Probate Litigation

 Disputes over wills and trusts are unfortunately not common. A probate litigation lawyer can help with contesting wills, determining heirship when a person dies without a will, helping trustees pursue legal action against a negligent trustor, and other issues.

       Wills & Trusts

Will Based Planning

A last will and testament (“Will”) is a legal document that allows you to designate who will be your beneficiaries upon your death. A Will also allows you to designate the guardians of your children if both legal guardians pass away. A Will is advisable if you have minor children. A Will is also recommended for individuals that want to create a simple plan and do not want to go through the process of creating a Revocable Living Trust.

The one thing you must be aware when creating a Will is that the Will does not avoid probate court. When you pass away, your Will is introduced to the Probate Court in the county where you passed away, to be administered according to the provisions stated in the Will. 

Compared to not having any estate plan in place, a Will is better than not doing anything. If you pass away without a Will, then the Florida Intestacy Statute will dictate what happens to your assets.

Trust Based Planning

A Living Trust or Revocable Living Trust (“Trust”) allows you to have control over your assets during your lifetime and in the unfortunate event of your passing.

When you create a Trust you select a Trustee. The Trustee is the person that administers the Trust. During your lifetime, you are typically the Trustee. In the event of incapacity or death, then you designate a Successor Trustee to administer the Trust on your behalf.

Trust have increased in popularity in Florida because they provide a variety of your benefits:

• Avoid Probate;
• Avoid Guardianship proceedings in the event of Incapacity;
• Have control over your assets; and
• Asset protection for beneficiaries at your death.

A Trust can be amended any time prior to your death as long as you have capacity. Upon your death, the Trust becomes irrevocable and no longer can be changed.

Compared to a Will, the Trust provides you with a lot more control. With a Will, all your assets get transferred to your beneficiaries through the Probate administration immediately unless you create a “Testamentary Trust.” A testamentary trust is a Will with a Trust which is created upon your death.

The Trust allows you to distribute all your assets upon your death to your beneficiaries or distribute the assets through a series of distributions.

If you have minor children the Trust is particularly useful. Not only does it avoid appointing a Guardian for your child, but you can make sure that the assets are used for his or her education, and that the assets remain in the Trust until an specified event or age.

Power of Attorney

A Florida power of attorney (“POA”) allows you (the “principal”) to designate an “agent” to act on your behalf. The power of attorney in Florida is primarily used for financial transactions. However, in Florida you can also allow the agent to make health care decisions for you, the Designation of Health Care Surrogate is a document better suited to that end. 

Health Care Surrogacy

What is a Florida Designation of Health Care Surrogacy

A designation of health care surrogate allows you (the principal) to appoint an agent to make health care decisions or receive protected health information, or both, on your behalf in the event that you become incapacitated or you are not able to make your own informed decisions.

The Florida Designation of Health Care Surrogate can apply immediately or upon your incapacity. If you are not incapacitated, your decisions will be final, however, your agent can still obtain medical information on your behalf from hospitals and doctors. This is particularly useful when you are elderly or have an elderly parent that may need supervision and/or help with their daily activities. 

The surrogate can be any competent adult appointed by you. This gives you the freedom to select the person most likely to carry out your wishes. The designation of health care surrogate can also be used to provide express directions or restrictions regarding your wishes about medical treatment and the powers that the health care surrogate will have.

The designated surrogate must act according to the instructions of the designation. This allows you to dictate the medical treatments that you want to receive under certain circumstances. To the extent that there are no instructions regarding a particular health care decision, the surrogate must make decisions based on your best interests.The designation will be effective until revoked or if you stipulate a termination date. This allows you the ability to give the power to someone else to make decisions on your behalf permanently or only when you need it.

 Purpose of a Florida Designation of Health Care Surrogate

One of the most important purposes for designating a health care surrogate is to have someone that cares for you reasonably informed with your well-being. This is specially true with children that take care of elder parents.Many times doctors and hospitals are constrained by HIPAA Compliance and they cannot divulge privileged medical information. A health care surrogate form properly drafted can avoid this issue.

Another important purpose is to allow someone else to make health care decisions should you not have the capacity to do so. Sadly, many people now-a-days suffer with deteriorating deceases like dementia and Alzheimer’s. 

With the designation in place, together with a properly drafter durable power of attorney, it can prevent you or your family from having to open up a Florida Guardianship should you become incapacitated. Florida Guardianship is expensive and many of your rights are removed when you are declared totally incapacitated.