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Probate and elder law issues will impact nearly every family at some point. How complicated those issues are and how well the process goes will depend in large part on how well prepared the family is. Unfortunately, most people are underprepared.
Whether you have specific needs you’re ready to address or you’re starting from scratch and need guidance on how best to protect your family, the best starting point is an experienced Jacksonville estate lawyer. If you’re acting as executor of a Duval County will, considering estate litigation, assessing the benefits of claiming an elective share, or contemplating trust litigation, a local probate litigation attorney can be your best source of information.
Attorney Thomas Upchurch and his team have extensive experience helping people protect themselves and their loved ones through the probate process. If you’ve been named executor of someone’s will, have doubts about the validity of a will that’s been submitted to probate, believe the executor of a will or administrator of a trust is mismanaging the property, or have other questions about asserting your rights in probate or trust litigation, schedule your consultation right now.
When most people think of “estate planning,” they think about a will or other means of passing property after death, but that’s just one of the many important elements in an effective estate plan. Overlooking other aspects, such as medical directives and powers of attorney, can create unnecessary expense and complication for your family.
Many people simply assume that the person closest to them will step in to make medical decisions or ensure that their bills get paid if they’re incapacitated, but it’s rarely that simple. The person who knows you best and is in the best position to make decisions on your behalf may not be the one with legal authority. Or, there may be two people with equal voice from a legal perspective, but with very different views about what should happen next. And, of course, your brother or adult daughter can’t simply step in and start depositing your Social Security checks and writing checks from your account to cover your mortgage and other expenses if no legal authority has been granted.
Similarly, many people have a general idea that their family will inherit automatically if they die without a will, and that’s true. But, the people who inherit under Florida’s intestate succession law may not be the ones you expect—particularly if you or your spouse has children with someone else. And, people you think of as family may be excluded. For instance, if you have a stepchild you’ve raised from babyhood but never adopted, you may think of her exactly the same as your natural children. In Florida, however, she won’t inherit anything unless you’ve specifically provided for her.
These are just two examples of the many complications that can arise when you neglect estate planning. The same concept holds true for probate litigation, trust litigation and other issues.
Probate litigation is sometimes warranted and may even be necessary to ensure that the deceased’s true wishes are carried out and family members and other beneficiaries are protected. But litigation isn’t always the answer.
Sometimes, the issue triggering potential litigation won’t have a significant impact on distributions, and the cost of litigation might exceed any possible gain. In those cases, pursuing a will contest or other probate litigation may not be in anyone’s best interest. Sometimes, even significant issues can be resolved through negotiation, protecting estate assets from being depleted by a long battle. An experienced probate attorney can make those assessments and explain your options from both a legal and a practical perspective.
Similarly, a surviving spouse deciding whether to elect against the will may not have adequate information to make that decision. The calculation of a spouse’s elective share is complicated, and determining which path is most beneficial requires a close look at both the estate assets and any assets that may be jointly held or have passed to the surviving spouse outside the estate.
Some of the most important services a probate and elder law attorney can provide include:
Of course, every individual’s needs and every family’s situation are different. So, effective preparation requires more than finding a checklist online or using a do-it-yourself will kit.
An experienced Jacksonville estate lawyer will guide you through the process, raising issues, considerations and options you may not have considered.
When you take responsibility for administering a loved one’s estate, you’re taking on a significant responsibility. It’s up to you to ensure that the deceased’s wishes are carried out, but that’s not your only job. Florida law sets forth a long list of duties of the personal representative, including:
This can be a daunting task for someone inexperienced with the process, and it’s easy to make mistakes. An experienced probate administration attorney such as Thomas Upchurch can simplify the process, manage some aspects, provide step-by-step instructions, help you connect with experts as needed, prepare documents, and help ensure that all tasks are completed properly and on time.
A consultation with a seasoned Jacksonville probate attorney should be your first step. You can schedule one right now by calling 386-320-6169 or filling out the contact form on this site.
Usually when someone passes away and a will is submitted to probate, the process is relatively predictable. Florida law and the terms of the will combine to dictate which debts, expenses and bequests will be paid and set the order of priority. The executor’s job is to manage the process according to the law and the terms of the will.
Sometimes, though, conflicts arise. One of the most common types of conflict is a will contest. Will contests arise when an interested party claims that the will submitted to probate is not valid. Some possible reasons a will might be subject to challenge include claims that:
Will contests, like other types of probate litigation, are litigated within the probate case.
The other type of probate litigation typically involves claims relating to the administration of the estate. For instance, beneficiaries may attempt to remove an executor they believe is violating his or her fiduciary duty. Beneficiaries may also use probate litigation to seek additional information, force the executor to provide an accounting, or challenge the executor’s plan for distributing assets.
Before undertaking any type of estate litigation, it is important to understand the possible impact of the litigation. For example, a family member who is considering contesting a will should be aware of how property distribution would play out if the will is declared invalid. It’s also important to consider the cost of estate litigation relative to the potential gain. And, an experienced probate attorney should assess the strength of the claim. For example, minor mistakes or delays in providing information generally won’t support removal of an executor, though beneficiaries may be frustrated by what they view as poor performance. In that situation, there may be less aggressive and less expensive solutions available.
A surviving spouse in Florida is entitled to an elective share by law. But, that doesn’t mean that claiming the elective share is always the right choice. And, it doesn’t mean a named beneficiary of a will is completely powerless when a surviving spouse claims the elective share.
If you are the surviving spouse and inherit under the will, it may take a lot of math to determine whether or not electing against the will is to your benefit. For example, a will may leave the surviving spouse 25% of the estate. The Florida elective share is 30%, so it appears that the elective share will be greater, but the elective share calculation considers property that may not be passing through the estate. Depending on the property in play, how it is titled, and what the spouse receives outside the estate, he or she may receive less by electing for the 30% statutory share in place of the 25% provided through the will.
An experienced probate attorney can assess the bigger picture and calculate both scenarios so you can make the choice most beneficial to you.
But, what if you’re a beneficiary and someone else is electing against the will?
The surviving spouse is entitled to the elective share if he or she chooses to claim it. There’s nothing you can do about that. It may, however, still be in your best interest to consult a probate litigation attorney. That’s because other issues, such as which property should be counted and how that property is valued, may impact what you ultimately receive.
If this seems like a lot of information and raises more questions in your mind, don’t worry. You don’t have to become an expert in probate law to protect yourself and your family. You just have to find the right probate lawyer to guide you through the process, advise you on any claims you’re considering, and handle the technical and legal aspects of the process for you.
Attorney Thomas Upchurch has extensive experience in probate administration and litigation, and in the related areas of estate law that impact Jacksonville families. Give yourself the advantage of that experience as early in the process as possible. Call 386-320-6169 right now to get started.
Florida probate courts are busy. In any given year, more than 130,000 probate matters can be filed around the state. More than 7,600 of those matters will be filed in the 4th Circuit, which includes Duval, Clay and Nassau counties. Nearly 85% of those filings are likely to be in the Duval County Probate Court. The probate court is located in the Duval County Courthouse at 501 W. Adams Street in Jacksonville.
In the most recent fiscal year’s statistics, these filings included:
A probate case is typically opened with the filing of a deceased’s will. A will is submitted to probate in Duval County if the deceased was a resident of the county at the time of his or her death. The administrator of a Florida estate has many responsibilities, some of which are unfamiliar to most people. That’s why Florida law requires that most administrators be represented by a Florida attorney. The most effective representation comes from an experienced estate administration attorney who is familiar with the workings of the local probate court.
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