How Does Formal Probate Work In Florida?

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Formal probate is the legal process that is used in Florida to administer a deceased person’s estate when they have passed away with a valid will, or when they passed away without a will (intestate). Here are the steps involved in a formal probate in Florida:

  1. Filing the Petition: The probate process begins when a petition is filed with the probate court. The petition is typically filed by the personal representative named in the will or appointed by the court if there is no will. The petition must include information about the deceased person, their assets, and the names and addresses of their beneficiaries.
  2. Notice to Creditors: The personal representative must notify the deceased person’s creditors of the probate proceeding, and they must also publish a notice to creditors in a local newspaper. Creditors have a set period of time to make a claim against the estate, usually three months.
  3. Inventory and Appraisal: The personal representative is required to prepare an inventory of the deceased person’s assets and have them appraised. This is necessary to determine the value of the estate and to ensure that all assets are accounted for.
  4. Payment of Debts and Taxes: The personal representative must pay any valid debts and taxes owed by the deceased person or the estate.
  5. Distribution of Assets: After all debts and taxes have been paid, the personal representative can distribute the remaining assets to the beneficiaries named in the will or heirs at law if there is no will.
  6. Closing the Estate: Once all of the assets have been distributed, the personal representative can close the estate. This involves filing a final accounting with the probate court and obtaining approval of the accounting from the court.

The formal probate process can be time-consuming and expensive, and it’s important to work with an experienced probate attorney to ensure that the process is carried out correctly. An attorney can help guide you through each step of the process and can help you avoid potential pitfalls that could delay the process or lead to legal disputes.

Types of Wills in Florida

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There are several types of wills in Florida that you may want to consider as part of your estate planning process. Here are some of the most common types of wills in Florida:

  1. Formal Will: This is the most common type of will in Florida, and it is typically prepared by an attorney. A formal will must be signed by the testator (the person making the will) and two witnesses in the presence of each other. The witnesses must also sign the will in the presence of the testator. A formal will can be used to distribute your assets, name a personal representative (executor), and nominate guardians for minor children.
  2. Holographic Will: A holographic will is a handwritten will that is signed and dated by the testator but is not witnessed. In Florida, holographic wills are generally not recognized as valid, with a few exceptions such as if the will was created outside of Florida but is valid in the state where it was created.
  3. Nuncupative Will: A nuncupative will, also known as an oral or deathbed will, is a spoken declaration of the testator’s wishes that is made in the presence of witnesses. In Florida, nuncupative wills are generally not recognized as valid, except in certain limited circumstances such as for members of the armed forces who are on active duty.
  4. Self-Proving Will: A self-proving will is a type of formal will that includes a notarized affidavit signed by the testator and witnesses. This affidavit serves as evidence that the will was executed properly, which can make the probate process smoother and faster.
  5. Living Will: A living will is a legal document that outlines your wishes regarding medical treatment if you become unable to make decisions for yourself. A living will can specify the types of medical treatments you do or do not want, such as life-sustaining treatments.

It’s important to work with an experienced estate planning attorney to determine which type of will is right for you and your specific circumstances. An attorney can help ensure that your will is properly executed and meets all legal requirements in Florida.

 

Lady Bird Deeds In Florida

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A Lady Bird Deed, also known as an Enhanced Life Estate Deed, can be a useful estate planning tool for homeowners in Florida. Here are a few reasons why you may want to consider having a Lady Bird Deed for your homestead property:

  1. Avoiding Probate: When you pass away, your property typically has to go through the probate process before it can be distributed to your heirs. This process can be time-consuming, expensive, and can tie up your property for months or even years. A Lady Bird Deed can help you avoid probate by allowing your property to pass directly to your designated beneficiaries without going through probate.
  2. Retaining Control of Your Property: With a Lady Bird Deed, you retain control of your property during your lifetime. You can continue to use and enjoy your property, sell it, or mortgage it without the need for your beneficiaries’ permission.
  3. Medicaid Planning: If you require long-term care in the future and need to apply for Medicaid, a Lady Bird Deed can help you protect your property from being subject to Medicaid estate recovery. This means that your property would not be sold to pay back the government for any Medicaid benefits you received.
  4. Flexibility: Lady Bird Deeds offer flexibility and can be revoked or amended during your lifetime. This means that if your circumstances change, you can change the beneficiaries or revoke the deed altogether.
  5. Homestead Exemption: In Florida, homestead property is entitled to certain legal protections, such as exemptions from property taxes and creditor claims. A Lady Bird Deed can help ensure that these protections remain in place while allowing you to transfer the property to your designated beneficiaries.

In summary, a Lady Bird Deed can be a useful estate planning tool for Florida homeowners, allowing you to avoid probate, retain control of your property, protect your property from Medicaid estate recovery, and maintain your homestead protections. However, it is important to consult with a qualified estate planning attorney to determine whether a Lady Bird Deed is right for you and your specific circumstances.

About Your Will

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You should keep your Will in a safe place.  Make sure you tell someone that you have a Will and where to find it.

You should keep this information sheet with the Will.  Attach a list of your main assets, and indicate where your other important personal documents are kept.  This list should also include information about your life insurance policies, jointly owned property, and any personal retirement plans you have set up (such as IRA or KEOUGH plans).

Do not write on your Will or attempt to change your Will yourself.  Consult with your attorney.

Your Personal Representative should contact legal counsel before proceeding with the administration of your estate.

As you know, we have taken steps in the preparation of this Will to simplify the administration of your estate.  Of course, we would welcome the opportunity to discuss your Will and your estate with you and the person you have named as Personal Representative.

We are pleased to have been able to serve you in this matter.  If you have any other legal questions or needs, feel free to contact this office at any time.

Legal and Financial Actions To Take Right Now in Light of COVID-19

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As you already know,  the COVID-19 pandemic means nothing is business as usual. Many states have implemented a “shelter-in-place” order to limit the spread of the disease.  Once you have attended to your (and your parents’) immediate needs, it will be time to consider more long term precautions.

During this time of stress and chaos, your parents may be resistant to talking about estate planning. It may feel too pessimistic to plan for the worst in the midst of a scary situation. However, that’s exactly why it’s the most important time to do so. Here are actions you can, and should, take to ensure you and your family are protected both legally and financially.

Update Your Health Care Documents

Above all, you first need to ensure that both you and your parents have advance care directives. This will be an invaluable reference point for those who are assisting you, whether they be friends, family, or medical professionals. This directive should include instructions on your preferred methods of care and the contact information for each of your doctors. Name your healthcare Surrogates.

Durable Power of Attorney

You must also clearly state who will be in charge of handling your affairs in the event of your death or incapacity. Even if you have done this already, I urge you to take out any existing documents now and review them. Have your circumstances changed? Do you have additions to make? Encourage your parents to do the same thing, and to communicate with you about what their directives say.

Here’s an article to read, and share with your parents (and adult kids, if you have them) on the 3 parts of a Health Care Directive, and the 5 things you want to look for in your Health Care Directive right now, to ensure it’s up to date for Covid-19.

If you are unsure whether your Health Care Directive is in ship-shape, call us at (727) 410-2705, to get an expert to look at it.

Create a “Personal Resource Map”—an Inventory of Everything That Matters

You might think that only the very rich need to worry about making specific plans for their assets. But not so fast. Do you have investments or a retirement account? Physical things like jewelry, musical instruments, or furniture? What about crypto? Or even social media accounts? In the event of your incapacity or death, your family members won’t know where to look for what you have, or how to access it, unless you’ve planned for that ahead of time.

Somewhere between 49 and 80 billion dollars are currently unclaimed, or unable to be claimed, by family members of people who have passed away. This is money that individuals may have forgotten they had, or that they made no provisions to pass on to their family after they died. That’s why it’s extra important that you create a “personal resource map” to tell your loved ones where everything is and how they should move forward according to your wishes.

Wisely Maximize Your Access To and Use of Credit

Financial experts often recommend a rainy day savings account.  Maximize your access to credit now.  If you find yourself in a position where you need money quickly (to afford a medical expense, for instance), you don’t want to be scrambling to pay the bill.

Some people might balk at the idea of applying for more personal credit, particularly people who are afraid of debt. Think of it, however, as a worst-case precaution. You can get approved for credit even if you have a decent amount of savings—just as a backup. If you need reassurance, or if you need some help encouraging your parents to get approved for a higher credit line, you can contact us to walk you through your options.

Remember that it’s never an inappropriate time to plan for the future. It’s also always a good time to ask for legal and financial help. #WereAllInThisTogether and we’re here to support you, virtually now, as well. We can take care of you, and your family, fully online, or in the office.  Call us, at (727) 410-2705 we’re here for you.

 

 

Carol A. Lawson, Esq., 28870 U.S. Hwy 19 #300, Hodusa Towers, Clearwater, FL 33761

Phone: (727) 410-2705;   email: calh@gate.net

 Clearwater Bankruptcy Attorney, Clearwater Bankruptcy Lawyer, Clearwater Bankruptcy, Clearwater Estate Planning Attorney,  Pinellas Estate Planning Attorney, Pinellas Probate Attorney #FileLocallyDontOverpay #ClearwaterBankruptcy #ClearwaterBankruptcyAttorney#ClearwaterEstatePlanningAttorney                           #PinellasProbateAttorney