Generally, most people are familiar with the term probate. They know that it has something to do with Wills and happens after someone dies. However, what I have found in my 27 years as a practicing attorney, is that it is quite often a mysterious term and that there are many misconceptions about what the probate process actually is and what it entails.Often, I have clients tell me that they want to have a Will so that they can avoid probate. The reality is, the only way that a Will is effective is if it is submitted for probate. Probate is just the general term used to describe the whole process that happens after an individual dies so that someone can be appointed to wrap up the affairs of the decedent. If theres a Will, whomever is named as the executor or personal representative, is formally recognized by the court as the person authorized to handle the affairs of the estate, such as, paying bills and distributing property on behalf of the estate. If there is no Will, but there are assets to be distributed, someone such as a spouse or child can apply to be appointed as the personal representative of the estate to do the same things as if there was a Will appointing an executor or personal representative. However, instead of relying upon the Will for a determination of how the property is distributed, the distribution will be based upon Florida intestate law.Countless times, I have been contacted by a family member who has lost a loved one that needs to get access to funds of the decedent to pay funeral bills or just to resolve a life insurance claim or distribute funds in a bank account. Generally, they call me after they have been advised that they do not have the right to access an account at a bank or brokerage firm as they have not been appointed by the court. In that case, they will have to retain an attorney and go through the probate process to be appointed as the personal representative.Probate is one of the unique areas of the law where you generally cannot represent yourself. Sometimes the funds to be accessed may not even exceed the costs to go through the probate process. Therefore, I want to share three simple tips with you that can help you avoid forcing your loved ones to go through the probate process if your assets are limited or, if you have a loved one with limited assets, so you can assist them in planing accordingly.Bank accounts: Sometimes I will meet with family members of the deceased loved one where the only asset is a bank account and the bank account is only in the decedents name. The only way to get access to the funds is to go through the probate process. However, the time delay and the expenses incurred for filing fees and legal fees could simply have been avoided if the person, while alive, named a beneficiary of that account to be paid upon the death of the account holder. If this procedure is followed, instead of having to go through the probate process, the beneficiary of the account merely needs to present a death certificate to the bank to obtain access to funds.Life insurance policies: Generally, life insurance policies name a beneficiary. However, sometimes they name my estate as the beneficiary. If that is the case, in order to get access to the funds, someone must be appointed as the personal representative of the estate to distribute the funds according to a Will, or if there is no Will, then pursuant to Florida intestacy law. A simple way to avoid this is to make sure that your estate is not named as beneficiary under the policy and to review your policies on an annual basis to make sure you have proper beneficiaries named. If a spouse has passed away, then you may want to update the policy to name your children or other beneficiaries such as a nonprofit organization or church. Again, completing a simple change of beneficiary form is much easier than forcing your family to have to go through the probate process if your life insurance policy is your only asset.Brokerage accounts: I am often surprised that clients are unaware of the opportunity to name beneficiaries on their brokerage accounts. Quite often I have senior clients who may have sold off all their assets and are living in an assisted living facility and their only asset is a brokerage account. Again, because of their failure to name a beneficiary on the account, the family has to go through the expense and time delays associated with probate. If you do have a brokerage account, you should contact your financial adviser to discuss the naming of beneficiaries on that account. Generally you can name an initial beneficiary and contingent beneficiary.Although there are many other probate avoidance mechanisms that can get quite complex, especially when looking to avoid tax consequences for estates over $5 million, quite often these three tips will help a large number of individuals. Plan to review your assets and talk to your parents about their assets and what they have done to avoid the probate process.While its a topic that no one likes to talk about, once someone has passed, its too late and nothing can be done. If you would like a complimentary consultation regarding your current estate planning or if you do not have an estate plan and would like to learn more, please give us a call at 941-206-3700 to schedule an appointment or to request our FREE Special Report on Five Tips to Avoid a Family Tragedy

 Coping with the loss of a loved one is difficult. We hope this information will help you focus on what you need to do and what you may wish to delegate to friends and family. This brochure will provide you with some basic information on what you may need to know in the first few days following a death. You should establish an early relationship with your attorney to assure that all matters are properly addressed. Seeking your attorneys advice before you act may avoid more costly legal services later.Take Care against Unethical PersonsIn the period following the loss of a loved one, be careful before accepting any telephone or mail solicitation. Carefully scrutinize invoices for validity, as it is possible to receive fraudulent invoices. Avoid lifestyle changes for a period to allow for reflection on how the loss will affect the surviving family and friends.Avoid Immediate Collection of BenefitsAvoid transferring title to assets or making claims as a beneficiary until considering whether either a tax or non-tax reason exists for refusing to receive an asset. Even though the account executive wants to be helpful, you may lose an important tax advantage if you accept an asset. An attorney can help you find the best approach.Veterans Benefits and Social SecurityThe mortuary may assist you with the paperwork for both VA and Social Security benefits. For information on VA benefits, call the nearest VA listing for Benefits Information and Assistance.  For Social Security benefits, call the Social Security Administration immediately. Call (800) 772-1213. Be prepared to identify the deceaseds: relationship to you Social Security or VA claim number date of birth date of death place of death surviving spouse or next of kin medical history that bears on whether the death is service related or notIf you do not know the VA number, then provide: service number dates of active serviceYour call will stop the monthly payments. Usually, the VA will automatically withdraw any payments made via direct deposit after the date of death. If this does not happen, you must return the check for the month of death.Social Security monthly benefits are available to the surviving spouse and to children under 18 and certain disabled children. Benefits include a lump sum death benefit. Ask for the Social Security Survivors brochure.Veterans benefits may be available to the surviving spouse. Benefits may include a lump sum death benefit; if death was service connected, a continuing monthly payment to the surviving spouse, and financial assistance with funeral expenses and cemetery plot, or burial in a national cemetery.  Ask for the Federal Benefits for Veterans and Dependents publication.Our office has helped many grieving families and friends with the difficult matters that need to be handled after a loved one's death.  We understand the pain of the loss can make these matters extremely stressful and we try to assist in a way that alleviates some of the pressure.

Guardianship Versus Powers of AttorneyOne of the most common questions I get as a practicing elder law attorney is, what is the difference between guardianship and a power of attorney? A power of attorney is a document that a person executes when they are competent to appoint someone to be their agent for either healthcare matters, financial matters or both. The defining characteristics of powers of attorney is that it is a voluntary action by the person, and it can be revoked at any time so a power of attorney cannot be used to trump someones free will in order to place them in a facility for example, against their wishes.A guardianship is a process where one typically files a pleading, requesting to be appointed as a persons guardian.  In this case, we must demonstrate that the person we seek to protect is incompetent to manage either their healthcare, or their finances, or both.The guardianship typically comes about in two primary ways. First, if the person we seek to protect never executed a power of attorney, and now is incapable, a guardianship would be necessary in order to handle things like an admission to a hospital or long-term care facility because no one has been appointed to consent to treatment for them.  Second is a situation where the person we seek to protect is actively combative to the plan in place to handle their health matters. In this case, we must seek guardianship in order to overcome their wishes, particularly if they are unwise. For example, if your parent develops dementia, but insists that there is nothing wrong with them, that they should continue to drive and live independently and manage their medication, despite evidence that those things are dangerous in their current condition, guardianship is typically necessary in order to restrict their freedom.In some states, like Florida, the guardianship will also cover financial matters.  in Alabama, the conservatorship is established at the same time as a guardianship in order to handle healthcare matters for those cases where there is no power of attorney, and the conservatorship is necessary in order pay their bills, access finances, and so forth.To establish financial guardianship, no matter what its called, we typically must be bonded so the person who is applying must be credit worthy and able to obtain a bond from a surety company. This ensures that the persons financial well-being is well taken care of.  If there is no one available, or if no one wishes to handle finances, every county typically has, or can appoint someone, as a county conservator to serve as that persons conservator.  This is helpful in cases where its a very difficult or complex financial situation.  Then it may be preferable to have a professional appointed and giving a relatively small fee for doing so.  This leaves the guardian to care for the healthcare of the individual without the added stress of complicated financial matters. Contact an elder attorney for more information about what your needs are and please dont put off executing a power of attorney in favor of those people that you trust as soon as you can to avoid what could be difficult and unnecessary proceedings in Probate Court down the road.This article was contributed by Kyla Kelim with Aging in Alabama.  Kyla is an experienced Elder Law attorney.  Contact Kyla at 251-281-8120.