Most people want to believe that their wishes will be carried out if they become incapacitated or pass away. Unfortunately, many fail to take the necessary steps to protect themselves.
Some believe that simply telling a close friend or family member what they want is sufficient. Others attempt to create their own instructions by leaving a letter or using an online form to create a will or a power of attorney. Often, these efforts don’t accomplish what people expect them to. That can mean complications and hardships for surviving family members.
This page provides general information about the issues to consider and steps to take in estate planning and probate administration. But, there’s no substitute for an experienced Titusville probate lawyer.
Titusville estates are administered through the Brevard County Probate Court, which is part of the 18th Judicial Circuit. The Probate Court handles some other issues, such as trust matters and guardianships. However, about 67% of the matters resolved by the Brevard County Probate Court in the most recent year reported were probate matters. In Seminole County, the only other county in the 18th Circuit, probate cases made up a much smaller percentage of the caseload.
For Florida residents, the process breaks into three possible sections: estate planning and maintenance, probate administration, and possible probate litigation.
The best way to protect yourself during your lifetime and your family after your passing is with a comprehensive estate plan. But, most adults in Florida and around the country haven’t made appropriate arrangements. The numbers have always been low, but a recent survey shows that people are less prepared today than they were a few years ago. In 2017, Caring.com’s annual survey found that 42% of respondents had a will or other estate planning document. Just three years later, only 32% said the same.
That’s risky because:
A Titusville probate attorney can help you determine the best way to protect your assets and put decision-making in the right hands if you’re unable to make decisions for yourself. An experienced estate lawyer can also help you nominate a guardian to care for your minor children if you are unable to do so, provide for any loved ones with special needs, and plan for your own possible future needs, such as nursing home care.
A Florida will typically includes a provision nominating a personal representative. Assuming that person is both qualified and willing to serve, the Brevard County Probate Court will usually appoint that person to administer the estate.
Serving as a personal representative is a serious responsibility, and can be daunting. In most situations, Florida law requires that the personal representative be represented by a probate attorney. The probate lawyer can help ensure that the personal representative is aware of each of the many items on his or her list of responsibilities, and that each of those duties is carried out properly and in a timely manner. Some of these responsibilities include:
Additional responsibilities may arise during administration, particularly if probate litigation is initiated.
“Probate litigation” takes in any adversarial matter raised in a probate administration. The two most common types of probate litigation are will contests and actions against the personal representative. However, probate litigation may involve other issues, such as a conflict over the spousal elective share.
As the term suggests, a will contest is a proceeding in which some interested party contests the validity of a will that has been submitted to probate. A Florida will contest may be based on technical requirements. For example:
Another type of will contest involves the capacity of the testator to create a legal will at the time of execution. For example, this may arise when the testator:
Some will contests involve allegations of more sinister actions, such as:
If you’re considering a will contest, it’s important to talk with a Titusville probate lawyer before making any decisions. Many people have misconceptions about what happens if a will is found to be invalid. For example, if there is a prior valid will, invalidating the will that has been probated may revive the prior will. Typically, it’s a clause in the new will that revokes the old one–that means if the new will is invalid, so is the revocation of the prior will. So, the effect of a successful Florida will contest may depend on the terms of the previous will.
On the other hand, if there is no prior valid will, the estate could end up distributed under Florida’s law of intestate succession. Before undertaking a will contest, it’s important to understand how success will impact your interests and those of other family members.
It’s not unusual for a beneficiary to feel that the personal representative isn’t doing enough, or isn’t handling his or her responsibilities correctly. When that’s true, Florida law allows the beneficiary to bring an action within the probate case. Depending on the situation, the beneficiary may ask the probate court to order the personal representative to take a particular action, such as providing an accounting by a specific date. Or, in more extreme circumstances, a beneficiary may ask the court to remove the personal representative.
This type of probate litigation also requires serious consideration. Courts don’t remove personal representatives lightly, and the fact that the estate isn’t being administered exactly as the beneficiaries might prefer generally won’t be sufficient. An experienced Florida probate litigation attorney can help you weigh the pros and cons of pursuing action against a personal representative, including the likelihood of success, the impact on the estate administration timeline, potential benefits, and the estimated cost of the litigation.
Under Florida law, a surviving spouse is entitled to a certain minimum percentage of the deceased’s property. If the deceased left a will that does not adequately provide for the surviving spouse, he or she can “elect against the will.” That means that the surviving spouse can choose to receive the share of the estate set forth in Florida’s elective share statute instead of inheriting under the terms of the will.
Though the surviving spouse is entitled to elect against the will as a matter of law, both the decision and the process can be complicated. That’s partly because the calculation under the elective share law takes property into account that may not be passed through the will. So the 30% elective share and 30% under the will may be very different amounts. The best way to determine whether the surviving spouse is likely to inherit more or less by choosing the elective share is to consult a probate litigation attorney.
Estate planning and probate matters are more complicated than most Florida residents realize. Many families also don’t understand the risks they take when they ignore estate planning or try to cover their bases with forms and do-it-yourself options. To truly protect yourself and your family, you need thorough, reliable information from beginning to end. That means knowledgeable guidance in the estate planning process and preparation of your documents, keeping those documents up to date as your family situation evolves, and getting the help you need with the probate process.
The opportunity for costly errors is so great that Florida law requires most personal representatives to retain attorneys to help them manage the probate process. When the estate administration is moving forward smoothly, beneficiaries and other interested parties typically don’t need their own attorneys. But, if an interested party has reason to question the validity of the will, if beneficiaries suspect the personal representative of mishandling his or her responsibilities, or if other conflicts arise, it’s wise to get advice from an experienced probate litigation attorney as early as possible.
Attorney Thomas Upchurch helps individuals, families and personal representatives in and around Titusville with all facets of the estate planning, probate administration and probate litigation process for decades. He has the knowledge and experience to help you make decisions that will protect you and your loved ones, and to represent your interests in contested probate matters.
You can schedule a consultation right now by calling 386-320-6169.
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