Category Archives: Probate and Guardianship

Probate is a court process that transfers assets owned by a deceased person to the beneficiaries named in their Will.

Probate is required even when a decedent has a valid Will. When someone dies with a Will, a probate judge must “admit the Will” to probate by finding that the will is valid. If the decedent died without a Will, otherwise known as “intestate”, the probate will proceed and assets will be distributed to the next of kin.

If a decedent had a valid Will, that document nominates who will be the “Personal Representative.”  The Personal Representative must be represented by an Attorney and is responsible for overseeing the probate process and distributing the assets to the beneficiaries.

There are two types of probate administration in Florida, formal administration and summary administration. Summary administration is a simpler process, while formal administration is required for certain estates that need the services of a personal representative or are too large for summary administration.

When the beneficiaries or heirs of the decedent’s estate are identified and the correct probate documents are submitted to the court, the judge will sign orders allowing the estate assets to be transferred. Prior to property being distributed, the probate judge must be satisfied that all interested parties have received proper notice, that eligible estate creditors have been paid, and that any disputes among the beneficiaries are resolved.

There are many ways to transfer your assets to your beneficiaries and also AVOID PROBATE.  Avoiding probate will save your beneficiaries time and money.

Contact the Law Offices of Debra G. Simms to learn how you can avoid probate.

When a person is incapacitated or unable to care for their own legal matters, another individual may be assigned guardianship. Guardians are individuals assigned by Florida courts. They oversee the well-being of an incapacitated person or a minor.

Guardianship often entails the management of the incapacitated person’s assets or property. Many life circumstances can result in the need for a guardian. If you have legal questions regarding guardianship in Florida, it’s important to speak with an attorney in Daytona Beach.

Types of Volusia County Guardianship

There are several types of guardianship that can be established under Florida state law. The most common type of Volusia County guardianship is for adults suffering from an incapacity, such as dementia.

However, other types of guardianship exist. For example, a minor may have a significant inheritance and need assistance ensuring the security of their assets. Florida state law requires minors to have a guardian handle large amounts of money for them.

In an emergency, the courts may establish temporary guardianship for someone who has become incapacitated unexpectedly. Temporary guardians typically have authority for a few months while permanent guardianship is established. This legal process generally takes a few weeks to complete.

How to Establish Guardianship in Florida

Establishing guardianship in Volusia County, Florida, involves engagement with the local courts. The person seeking guardianship must first file a petition with the court.

This petition must detail the mental and physical condition of the person for whom the petitioner is seeking guardianship. This person is known as the alleged incapacitated person, or AIP.

The petitioner must submit a written oath to promise they will handle the AIP’s estate in a legal manner. The courts also require an application with details that include the petitioner’s:

  • Work history
  • Educational experience and training
  • Background information

Speaking with a skilled attorney in Florida will ensure that you submit all the required paperwork if you’re seeking guardianship. After this paperwork is filed, the court will appoint a legal professional to inform the incapacitated person about the guardianship.

In some cases, the process will require a medical examination to establish the need for guardianship.

What Does a Guardianship Entail?

When a Florida court rules that an individual is completely incapacitated, the court may appoint a trustworthy person as a plenary guardian. This person wields full decision-making power over the incapacitated person, who is known as the ward.

A plenary guardian can take the following actions on behalf of their ward:

  • Entering legal contracts
  • Defending lawsuits and filing claims
  • Determining the ward’s place of residence
  • Accepting or declining medical treatment
  • Managing and selling property
  • Applying for public benefits

These are only a few examples of the rights bestowed on a plenary guardian in Florida. If you have questions about the role of guardianship in your case, reach out to a knowledgeable legal professional.

When you are seeking guardianship for an AIP, a skilled guardianship attorney can walk you through the process and represent you at required hearings.

In Florida, when a loved one requires extra assistance to care for themselves, the courts can appoint a person to legally become their guardian.

A Volusia County guardianship will allow you to assist your loved one in 4 ways:

1. Choosing the residence

As part of guardianship, you become able to control how and where your incapacitated loved one will live.

In cases of disabled adults, it will be your job to ensure they find safe and adequate housing or that they can live with you in an environment that meets their medical needs.

2. Medical Care

When you become a guardian, you’ll have to take on the day-to-day medical care for your ward.

Typically, guardianships are sought when a person can’t provide adequate care for themselves, such as adults with disabilities. One of your biggest responsibilities will be to ensure your ward gets the right treatment, medications, therapy, counseling, and so forth.

3. Managing Finances

You will also be entrusted to maintain all of your loved one’s financial assets.

When a guardianship is granted, you’ll establish a special bank account — that restricts the use of your ward’s assets — to pay for their care.

Should they have any assets such as property or investments, you’ll also be required to manage these safely and responsibly.

4. Reports to the Court

As part of your guardianship agreement, Florida courts will require you to provide various ongoing reports to monitor and ensure the welfare of your loved one.

These include any care plans, medical reporting, and financial statements.

Volusia County Guardianship

Consulting with a seasoned guardianship lawyer will help you determine the right course of action if you’re considering applying for guardianship.

The average person usually doesn’t know much about how their assets are distributed at the end of their life. How is the will handled? What does probate even mean? How can a revocable trust help you in the probate process?

These are all very good questions. This uncertainty is why you need to have them answered by an experienced Daytona Beach probate attorney.

What Is Probate?

When someone dies, the legal process of finalizing their estate and last wishes is called probate. During this process, a deceased person’s assets and debts are administered by the probate court. If there is a Last Will and Testament, that document will control what happens to the assets. If there is no Last Will and Testament, the assets will pass to the heirs at law.

In Florida, a probate case must be handled by an attorney.  In addition to the attorney fees, there are additional costs such as filing fees.  The process can also be time consuming.

A Revocable Trust is designed to help avoid the costly and time consuming probate process.

An estate planning attorney in Daytona Beach will be able to help you set one up.

How a Daytona Beach Probate Attorney Helps with Revocable Trusts

A revocable trust is a document that, like a Will, will determine the recipients of your assets when you pass.  However, by placing you assets in the trust, your beneficiaries will be able to obtain the assets without a lawyer or a court!  You will name someone you trust, a Trustee, to be in charge of this process.

The Law Office of Debra G. Simms will guide you through the process of setting up a Revocable Trust.

Formal administration and summary administration are two forms of probate used when a deceased person’s assets do not have a “payable on death” provision, joint owner, or beneficiary designation.

Summary administration is only available when the total value of the assets subject to probate is less than $75,000 or if the decedent has died more than two years before the filing.  It can also be used when the only asset is a Florida homestead.  Formal administration is used for all other estates or if a personal representative, or executor, is necessary.

Considerations for Choosing Summary vs. Formal Probate

Summary probate has a shorter time frame than formal administration — an average of 3-6 months vs. 6-18 months — and typically costs less. It’s also less complicated, and the probate court doesn’t require as much documentation as a formal administration.

However, with a summary administration, a personal representative is not appointed by the court.  Often times, a life insurance company or retirement plan will require a personal representative even when the assets are below $75,000.

Formal probate, also known a full administration is a lengthier process and requires more documentation than summary administration.

In formal administration, the court will appoint the personal representative who is granted the authority to gather information about any debts or assets belonging to the deceased.

The personal representative is issued Letters of Administration, which gives them access to banking and other financial information. They may also deal with creditors on behalf of the estate and negotiate any claims they deem invalid or questionable.

Formal administration takes longer than summary, costs more, and requires more steps to settle the estate.

Which Method Is Better?

Determining the correct course of access to settle the estate depends on the total value of the deceased’s assets, any debts, and whether there is pending litigation against the estate’s assets.

What Property and Assets Go Through Probate in Florida?

Any asset owned by someone who has passed away is subject to probate in Florida. The exception to this rule is property that had a named beneficiary or rights of survivorship. Examples of property that may have a named beneficiary would be a life insurance payout, a retirement account, or a bank account with a “pay on death” designation. An example of property with rights of survivorship would be real estate that has a deed indicating that a surviving co-owner will take the full ownership of the property upon the death of the other owner. Property purchased by a husband and wife typically has rights of survivorship in Florida, even if that specific language does not appear on the deed to the property. This type of survivorship is called “tenancy by the entirety,” and only requires that title be held by husband and wife, in which case, the deed will automatically transfer to the survivor upon the death of one spouse.

If an asset does not have a named beneficiary or rights of survivorship, it will have to go through probate to change ownership pursuant to the Florida Probate Rules (2022). The most common assets that go through this process are bank accounts, real estate, vehicles, and personal property. To determine if a specific financial account is subject to probate, the financial institution should be contacted. To determine if real estate is subject to probate, an attorney should examine the deed to the property.

Call the Law Offices of Debra G. Simms at 386.256.4882 to learn more.

This blog post is not case-specific and is provided only for educational purposes and is not intended to provide specific legal advice. Blog topics may or may not be updated and entries may be out-of-date at the time you view them.

 

Probate, also called “estate administration,” is a court process that transfers assets owned by a deceased person to the beneficiaries named in their Will.

In probate, the person who died is referred to as the “decedent.” Anything that the decedent owned when they died is collectively referred to as the “estate.” An estate may contain bank accounts, real estate, vehicles, tools, jewelry, art, guns or any other personal property owned at the time of death.

Probate is required even when a decedent has a valid Will. When someone dies with a Will, a probate judge must “admit the Will” to probate by finding that the will is valid. If the decedent died without a Will, otherwise known as “intestate”, the probate will proceed and assets will be distributed to the next of kin.

In legal terms, “beneficiaries” are people named in a will, and “heirs” are the next of kin who receive property in the absence of a will. Whether a decedent died with or without a will, the court’s main priority is to ensure that the correct beneficiaries/heirs are identified to receive the decedent’s property.

If a decedent had a valid Will, that document nominates who will be the “Personal Representative.”  The Personal Representative must be represented by an Attorney and is responsible for overseeing the probate process and distributing the assets to the beneficiaries.

There are two types of probate administration in Florida, formal administration and summary administration. Summary administration is a simpler process, while formal administration is required for certain estates that need the services of a personal representative or are too large for summary administration. The differences between these two types of probate proceedings are outlined for you later in this guide.

When the beneficiaries or heirs of the decedent’s estate are identified and the correct probate documents are submitted to the court, the judge will sign orders allowing the estate assets to be transferred. Prior to property being distributed, the probate judge must be satisfied that all interested parties have received proper notice, that eligible estate creditors have been paid, and that any disputes among the beneficiaries are resolved.

Chapters 731-735 of the Florida Statutes contain the probate laws for our state, however each county in Florida has specific requirements that must be met before the probate court will allow a case to move forward.

The Covid-19 pandemic has changed the way that most probate courts operate, many judges now hold hearings by video conference.

Call the Law Offices of Debra G. Simms at 386.256.4882 to learn more.

This blog post is not case-specific and is provided only for educational purposes and is not intended to provide specific legal advice. Blog topics may or may not be updated and entries may be out-of-date at the time you view them.

 

Estate plans should evolve over time, it is important to keep your living documents current by reviewing your estate plan every 5 years, or whenever you or your family or beneficiaries have a major life event.

The following points should be reviewed with your attorney.

DISTRIBUTION OF YOUR ESTATE

Does your plan effectively distribute your assets according to your wishes?

Do you have distribution provisions for your spouse?

What are the distribution provisions for your children? Should assets pass outright to your children or stay in trust for a longer period of time? If you decide on a continuing trust for a child, consider whether distributions should be staggered over time or whether the trust should be drafted to protect family assets from your children’s future creditors, including a divorcing spouse.

Do you want to include a trust for your grandchildren in your estate plan?

Do you hav a disabled beneficiary to consider? Do you need to incorporate special needs trust provisions for them to preserve the beneficiary’s eligibility for public benefits.

FIDUCIARY NOMINATIONS

Are you happy with your current choices for Personal Representative and Successor Trustee.

PLANNING FOR INCAPACITY

Is it time to update your Durable Power of Attorney and Health Care Proxy. Discuss the individuals you want to serve as your agents in these documents, as well as alternate agents.

TITLING AND BENEFICIARY DESIGNATIONS

What is the appropriate titling and/or beneficiary designations on your assets and accounts?

What assets should be owned by your Revocable Trust and how to effectively transfer ownership of assets into the name of the Trust (or how to designate the Trust as the transfer-on-death beneficiary).

Review the beneficiary designation for all your retirement accounts. Consider whether it is appropriate to leave retirement accounts directly to your spouse and/or children, or to your Revocable Trust so that the Trustees can administer the assets.  Discuss whether your Revocable Trust qualifies for the maximum payout period for a beneficiary under the SECURE Act, which became effective January 1, 2020.

It is important to keep your estate plan up to date to ensure that your wishes are carried out.

Call the Law Offices of Debra G. Simms at 386.256.4882 to learn more. We are currently offering free consultations via video conference to assist you with your needs.

This blog post is not case-specific and is provided only for educational purposes and is not intended to provide specific legal advice. Blog topics may or may not be updated and entries may be out-of-date at the time you view them.

The loss of a family member is an incredibly difficult time. In addition to coping with your grief and potentially planning a memorial service or funeral, there are usually many financial decisions that will need to be made.

How do you know what you’re supposed to do? It can be incredibly overwhelming. Here is a list of steps to help reduce stress during this time.

  • Contact your financial advisor so they can help you evaluate the financial aspects of the situation.
  • Also, contact the person’s estate attorney to see if they have an estate plan. This might include a will and revocable trust, for example. The attorney should be able to tell you if there is an:
    • Executor of the will and who it is
    • Trustee of any trusts that exist
    • A guardian for the care of a child and financial management while the child is a minor
  • Keep track of your phone calls and contacts (e.g., dates, times, status) in an online document or notebook. It will be helpful to find the individual’s passwords and have them in one place.
  • Locate a local notary, as they will be needed, the attorney’s office may have a notary available.
  • Obtain multiple copies of the certified death certificate. Some companies will not accept a photocopy. This is common with insurance policies and annuity contracts, and transfer of deeds for example.
  • Obtain a certificate of appointment to document the authority to act as personal representative, if required in your state. Keep in mind that language used to describe aspects of settling an estate can vary in each state.
  • Open an estate checking account, if necessary, to pay bills and receive accounts/assets associated with settling the estate. If you open a checking account for the estate, you’ll need to get an employer identification number through IRS Form SS-4, Application for Employer Identification Number.
  • Determine how the person’s assets/property will be maintained during the estate settlement process.
  • Contact the Social Security Administration. Inquire about survivors’ benefits. You might also be eligible for a one-time death payment.
  • Look into veterans’ benefits (if applicable) and possible assistance with burials costs for veterans and their spouses.
  • Contact financial organizations to find out how to update ownership and beneficiary designations on joint financial accounts (investment, bank, and credit accounts).
  • Contact financial organizations to determine how to close single-owner financial accounts and transfer assets.
  • Update names and beneficiaries on insurance policies, including life, health, and auto policies. Among the insurance providers, also confirm the coverage requirements to maintain the person’s assets (including the car).
  • Update the property title(s) for real estate. If property was owned in multiple states, review the probate process in each state. (For non-resident states, ancillary probate may be necessary.)
  • Contact a deceased spouse’s employer (if applicable) if there is a 401(k) account and a group insurance policy. It may also be necessary to contact former employers that may have provided a group life insurance policy. The person may also have retirement plans through former employers.
  • Contact all three major credit bureaus to minimize the risk of identity theft.
  • Locate the title and registration for any cars, so that you can update the vehicle title and registration; cancel the driver’s license.
  • Close email and social media accounts.
  • If the deceased is a spouse then the surviving spouse previously named their now-deceased spouse as their durable power of attorney or medical power of attorney, they will need to name a new person.

The entire process can be overwhelming, it is important to have a board-certified estate planning attorney involved to ensure all aspects of the estate plan are followed.

Call the Law Offices of Debra G. Simms at 386.256.4882 to learn more. We are currently offering free consultations via video conference to assist you with your needs.

This blog post is not case-specific and is provided only for educational purposes and is not intended to provide specific legal advice. Blog topics may or may not be updated and entries may be out-of-date at the time you view them.

  1. I am not rich so I don’t need an estate plan
  2. Everybody knows what I want, so why do I need a will?
  3. Minimizing taxes is one of the most important goals in developing an estate plan. 
  4. My spouse and I have been separated for many years, but haven’t bothered to get a divorce. I am not going to leave him/her anything. 
  5. My significant other and I have been living together for many years and I want him/her to inherit everything I have. 
  6. I have a simple will that takes care of all my concerns and that is all I need. 
  7. I have got a trust and that takes care of everything. 

Here’s a checklist to help you deal with these concerns:

  1. Review your will or trust to make sure it remains consistent with your wishes.
  2. Check your medical directive and financial powers of attorney to ensure that they remain consistent with your wishes.
  3. Review your beneficiary designations.
  4. What about your pets?
  5. Do you have specific wishes for a funeral and burial?

Call the Law Offices of Debra G. Simms at 386.256.4882 to learn more. We are currently offering free consultations via video conference to assist you with your needs.

This blog post is not case-specific and is provided only for educational purposes and is not intended to provide specific legal advice. Blog topics may or may not be updated and entries may be out-of-date at the time you view them.

Contact Us

Port Orange Office:
Prestige Executive Center
823 Dunlawton Ave. Unit C
Port Orange, FL 32129
Local: 386.256.4882
Toll Free: 877.447.4667
New Smyrna Beach Office:
817 E. 7th Ave
New Smyrna Beach FL, 32169
Local: 386.256.4882
Toll Free: 877.447.4667