Understanding Wills in Florida Executors, Guardianship, and Probate


Kelly L. Fayer, P.A.

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Posted on

Aug 02, 2023


Florida - Southwest

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Creating a will is a vital step in ensuring that your final wishes are carried out after your passing. In Florida, like in many other states, wills play a crucial role in estate planning. However, it is important to understand the intricacies of Florida’s laws regarding wills, including the selection of an executor, the inclusion of guardianship language for minor children, and the limitations of wills in avoiding probate.

Who Can Serve as PR or ExecutorIn Florida, the person responsible for administering the will is referred to as the personal representative (PR), while in other states, this role is commonly known as the executor. When creating a will, you have the freedom to designate an individual to act as your PR, who will be responsible for overseeing the distribution of your assets and carrying out your wishes as stated in the will. This person must be at least 18 years old; they must be a Florida resident and/or related to you by blood, marriage, or adoption; they must be both mentally and physically capable to serve; and they must not have any felony convictions on their record.

Guardianship Language for Minor ChildrenOne significant advantage of creating a will in Florida is the ability to include guardianship language for minor children. This allows you to designate a trusted individual to assume legal guardianship of your children in the event that both parents pass away before the children reach adulthood. By specifying your preferences in your will, you can ensure that your children are cared for by someone you trust, rather than leaving this decision up to the court.

The Limitations of Wills in Avoiding ProbateWhile having a will is a critical component of estate planning, it is essential to understand that it does not completely avoid probate in Florida. Probate is the legal process through which a deceased person’s assets are distributed and debts are settled. Even with a will in place, the probate court is responsible for overseeing the administration process to ensure the validity of the will, resolve any disputes, and ensure proper asset distribution. Therefore, it is essential to consider other estate planning tools, such as trusts, to minimize the need for probate and simplify the transfer of assets.

Creating a will in Florida is an essential step in estate planning, allowing you to dictate the distribution of your assets and provide for your loved ones. Designating a personal representative or executor is crucial to ensure that your final wishes are carried out faithfully. Additionally, including guardianship language for minor children provides peace of mind, knowing that your children will be cared for by someone you trust. While a will is an integral part of the estate planning process, it is important to be aware that it does not entirely avoid probate. To fully explore your options for minimizing the probate process, consulting with an experienced estate planning attorney can help you navigate the complexities of Florida’s laws and ensure that your wishes are carried out efficiently and effectively.

Every adult needs a clear, enforceable plan for what will happen when they pass away or become incapacitated. Creating an estate plan protects your loved ones, assets, and legacy and gives you the peace of mind of knowing your final wishes will be honored.

At The Law Office of Kelly L. Fayer, P.A., we provide attentive, personal assistance to Florida residents who are looking to prepare for the future. Our experienced lawyer is passionate about helping our clients fully understand their options and implement tools that will accomplish their goals. No matter your circumstances, our estate planning services in Fort Myers are designed to guide you through the planning process and include assistance with a wide range of instruments, from wills and trusts, to advance directives and powers of attorney. When you need an estate planning attorney near you, contact The Law Office of Kelly L. Fayer, P.A.

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Your Kids Will Thank You

Your Kids Will Thank YouOne of the questions I often ask people who come to our workshops, is What do you want to accomplish when doing your estate plan?  Most people tell me they want to protect stuff from the nursing home, while others want to be smart about taxes. Some people say they just want to make things easy for their family. They dont want to be a burden and they want to keep the family peace. With this goal in mind, I want to share some tips on how we can put together a meaningful plan for your family to reduce their stress when you are affected with health issues. When you pass away, your family will go through the grieving process, but you dont want it to be a stressful time from a financial and or legal standpoint. Rather, you want to set your kids up for success.What Does It Mean By Setting Your Kids Up For Success? Often, when people do an estate plan theyll want to write a Will. When they pass away, the kids tend to take over as executor or trustee. If a parent gets sick before they pass away, the kids may take over as power of attorney or guardian. What Is Guardianship?Lets assume that people dont do any planning, and have no legal documents. Should they become incapacitated, their kids will end up in guardianship. Lets take Fred for example, who hasnt done any planning, and is a widower. If he has a stroke, his kids need to get control of the money and make decisions. However, if Fred has not done any planning, his kids cannot make decisions simply because they are his children. They have to go through a process called guardianship. This means taking Fred into the courthouse to be declared legally incapacitated, by a judge. The judge may request that the guardian reports back regularly, so that the judge can make sure the guardian is the right person to make the decisions. This can be an expensive legal process, which can also be emotionally challenging.Can Guardianship Be Avoided?Its easy to avoid the guardianship process by simply having a Power of Attorney document. This document lists somebody to be your agent, who will be your legal and financial decision maker. In the event that you become incapacitated, somebody else can act on your behalf. They can walk into any bank or financial institution with the Power of Attorney document, and do what needs to be done, while acting in your best interests. Fortunately, we dont need the courthouse to make it happen. While we cannot prevent getting sick as we get older, whether its having dementia or a stroke that affects us, we can give our kids the legal authority to make decisions. Communicate With Your KidsIn addition to having a Power of Attorney, you also need to have a Will or a Trust in place. We encourage our clients to use a trust instead of a Will, to avoid going through the probate process. Regardless of whether your child is the executor of a Will or the trustee of trust, when you pass away, they will have roles and responsibilities. It is important for you to communicate with your children to tell them about what their future roles and responsibilities will be. It is not enough to just create a document and leave it on the shelf. You need to tell your kids where your assets are, where you bank, who the financial advisor is and who the attorney is. Avoid The StressIt often happens after a parent has passed away, that the adult children come to us with a bag of their parents documents and paperwork, trying to make sense of it. The kids are not only grieving after losing a parent, but they now have to sort through mom or dads belongings and paperwork. They are also confused about what their responsibility is as an executor or trustee. I urge you to make it easy for your kids to fulfil their roles, by sharing details of where your assets are. You dont have to share details of the value of your assets while youre still living, but I encourage you to share the necessary details with your kids. This will help them with the administration and avoid a stressful situation.Why You Need An Advanced DirectiveWho would make any health care decisions, if you are affected by a health issue and cannot make decisions? You need to decide who that person will be, and communicate with them. If you are elderly woman with no surviving spouse, one of your children will have to make decisions if you are unable to. You would need a document called an Advanced Directive, stating what must be done if you get sick or become incapacitated. It is wise to appoint two different family members to make financial and healthcare decisions respectively.Consider Having A Life Care PlanI encourage you to consider enlisting our help to create a Life Care Plan, which we offer at Sechler Law Firm. This plan takes into consideration where you will get care, and how you will pay for it. It means your family will not have to worry about whether they have made the right decision about your care. We have a social worker and a healthcare professional on our team, because life care planning is more about healthcare planning than it is traditional legal work. However, we consider it to all be part of doing estate planning. To find out more, call 724-564-6615.  You can also learn more by coming to one of our Three Secrets Estate Planning Workshops. Call to register for an upcoming free workshop!  

Understanding Probate Why People Go to Great Lengths to Avoid It

Probate is the legal process of validating a deceased persons will and distributing their assets to beneficiaries. It involves resolving any outstanding debts or taxes, locating heirs, and transferring ownership of property. The probate process varies depending on the state and the value of the assets involved. While probate can be an essential tool for ensuring fair distribution of assets, many people try to avoid it because of its lengthy, expensive, and sometimes complicated nature.There are three levels of probate in Florida:Formal AdministrationAlso known as formal probate, this is the most common type of probate in Florida. Formal probate is handled in the county Circuit Court where the decedent lived at the time of death.  A Personal Representative will be appointed to oversee distribution of the assets that are in the decedents name alone.  If you are appointed as the Personal Representative, then it is recommended and sometimes required that a Florida probate attorney help you through the process and also address any discrepancies or disputes.Summary AdministrationThis is an expedited form of probate administered when the total property and assets subject to probate are valued at $75,000 or less. Assets subject to probate are assets that are in an individuals name that is deceased. The asset didnt have a beneficiary named or another owner on the asset.Disposition Without AdministrationWhen the decedents assets are less than $6,000 and less than the value of the final expenses, then a Disposition of Personal Property Without Administration form may be filed.The personal representative (PR) is the person responsible for managing the estate during the probate process. The PR can be named in the deceased persons will or appointed by the court if there is no will. The PR is responsible for locating assets, paying debts, filing tax returns, and distributing assets to beneficiaries according to the will or state law.Creditors also play a significant role in the probate process. They have the right to make claims against the estate for any outstanding debts. The PR must notify all known creditors of the deceased persons death and publish a notice in a local newspaper to alert any unknown creditors. Creditors have a specific time frame to make their claims and the PR can reject any claims that are not valid. If a claim is rejected, creditors can challenge the rejection in court.The length of the probate process can vary widely, depending on the complexity of the estate and any disputes that arise. In some cases, probate can be completed in a few months, while in others, it can take several years. During this time, the assets of the deceased person are frozen, and beneficiaries may not have access to them until the probate process is complete.Given the potential drawbacks of the probate process, many people take steps to avoid it. One way to avoid probate is by establishing a living trust. A living trust is a legal document that allows assets to be transferred to a trust during the persons lifetime, and then distributed to beneficiaries without going through probate after their death. This can help avoid the time, expense, and public scrutiny associated with the probate process.Another way to avoid probate is by designating beneficiaries for certain assets, such as life insurance policies or retirement accounts. These assets pass directly to the designated beneficiaries, without going through probate.Probate is a necessary process for ensuring fair distribution of assets after a persons death. The process can be lengthy, expensive, and complicated, which is why many people take steps to avoid it. Understanding the different levels of probate, the role of the personal representative and creditors, and the potential benefits of living trusts and beneficiary designations can help people make informed decisions about their estate planning. However, it is strongly recommended that you consult with an attorney familiar with Florida law to accomplish your estate planning goals.The Law Office of Kelly L. Fayer, P.A. was established to serve members of our community. Whether you need assistance now or are planning for the future, it would be a privilege to help you. We strive to provide quality service while offering personal attention to each of our clients.The Law Office of Kelly L. Fayer, P.A.12601 World Plaza Lane, Suite 2Fort Myers, FL 33907(239) 415-3434 | fayerlaw.net 

Know the Benefits of Guardianship in Florida and Whats Important

Guardianship is a legal arrangement where an individual, known as a guardian, is appointed to make decisions for someone who is unable to make decisions for themselves. In Florida law, guardianship can be established for both minors and adults who are incapacitated. Although attorneys recommend establishing durable powers of attorneys to prevent the necessity of guardianship, there are many benefits to having a guardian appointed, particularly in the state of Florida.The Benefits of Guardianship in Florida LawThere are several benefits to establishing guardianship in Florida law. Firstly, guardianship provides legal protection for those who are unable to make decisions for themselves. This can be particularly important for minors or adults who have a disability or illness that affects their decision-making ability. By having a guardian appointed, they can be assured that their best interests are being taken care of, and that important decisions are being made in their best interest.Secondly, guardianship can help to ensure that a persons assets are protected. This is particularly important for minors or adults who are unable to manage their own finances. By having a guardian appointed, their finances can be managed in a responsible and transparent manner, and they can be protected from financial abuse or exploitation.Thirdly, guardianship can provide peace of mind for family members and loved ones. By appointing a guardian, family members can be assured that their loved one is being well cared for, and that important decisions are being made in their best interest. This can be particularly important in cases where family members are unable to provide care themselves, either due to distance or other reasons.When Do We Want to Be in Court?While guardianship can be established outside of court in certain circumstances, there are many cases where court involvement is necessary. In Florida law, court involvement is required for the establishment of guardianship for minors and for adults who are incapacitated.For example, if an unethical person is stealing from a person..their love ones can go to court to stop that process.  Also, a guardian can void a contract someone enters into.  An agent named in a power of attorney cannot do that.  Guardianships are helpful if there is a difficult family dynamic because it offers transparency by the requirements of annual reporting and people who are not guardians can also be given HIPAA authorizations and the ability to maintain a relationship with the person in need of the guardianship.For minors, court involvement is required when parents are unable to provide care or make decisions for their child. This can occur in cases where parents are deceased, incapacitated, or have had their parental rights terminated. In these cases, the court will appoint a guardian to make decisions for the child, including decisions related to education, healthcare, and living arrangements.For adults who are incapacitated, court involvement is required to establish guardianship. In Florida law, an adult is considered incapacitated if they are unable to make decisions for themselves due to a physical or mental condition. In these cases, a court-appointed guardian can be appointed to make decisions related to healthcare, finances, and living arrangements.The Importance of Having a Declaration of Preneed GuardianWhile guardianship can provide many benefits, it is important to have a plan in place for who will act as a guardian in the event that one is needed. This is where a declaration of preneed guardian can be helpful.A declaration of preneed guardian is a legal document that allows an individual to designate who they would like to act as their guardian in the event that they become incapacitated. In guardianship proceedings, the courts will not consider an individuals durable power of attorney or designation of health care surrogate when determining who will act as guardian. The only document that will be considered as evidence is the declaration of preneed guardian.By having a declaration of preneed guardian in place, individuals can ensure that their wishes are respected and that the person they trust is appointed as their guardian. This can help to provide peace of mind for both the individual and their loved ones, and can make the process of establishing guardianship smoother and less stressful.In Florida, guardianship can provide many benefits, including legal protection, asset protection, and peace of mind for family members and loved ones. When court involvement is necessary, having a declaration of preneed guardian can help to ensure that an individuals wishes and best interests are protected.The Law Office of Kelly L. Fayer, P.A. was established to serve members of our community. Whether you need assistance now or are planning for the future, it would be a privilege to help you. We strive to provide quality service while offering personal attention to each of our clients.The Law Office of Kelly L. Fayer, P.A.12601 World Plaza Lane, Suite 2Fort Myers, FL 33907(239) 415-3434 | fayerlaw.net

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Kelly L. Fayer, P.A.

Elder Law 12601 World Plaza Lane, Ste. 2, Bldg. 52, Fort Myers, Florida, 33907

Attorney Kelly L. Fayer grew up in Southwest Florida. She later moved to Tallahassee to attend Florida State University, where she graduated Magna Cum Laude. After graduating from Washington & Lee University, School of Law, in 1997, she moved back to Lee County beginning her legal career as a prosecutor. In 2006, after practicing law for a few years at a well-respected firm, she established Kelly L. Fayer, P.A. She has since been dedicated to provide members of Southwest Florida with quality services. She is a member of and holds a leadership position many organizations in the local area, including Vice President of the Lee County Bar Association, Treasurer of CAMEO of Lee County, and an Advisory Board Member for Impact Initiative. In addition, she volunteers as much as she could, with organizations such as PACE Center for Girls and Relay for Life.