When to Consult an Estate Planning Attorney

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.

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