Trusts and Estates Litigation

A revocable trust, or revocable living trust, is a legal arrangement in which one party holds assets for the benefit of a designated beneficiary. The trust creator retains the right to modify, amend, or revoke the trust during their lifetime. Commonly used in estate planning, revocable trusts help manage assets for the beneficiary’s lifetime in anticipation of one’s legal challenges, such as incapacity. Upon the trustmaker’s death, assets in the trust transfer directly to the desired beneficiaries, bypassing the probate process, reducing costs and delays.

In addition to a will or trust, a comprehensive estate plan will include:

Advance Health Care Directives (Designation of Health Care Surrogate and Living Will) – A designation of health care surrogate is a legal document that allows you to appoint a surrogate to make medical decisions on your behalf if you become unable to provide instruction yourself. The document can be designed to take immediate effect or upon your incapacity.  A living will is a legal document that outlines your wishes regarding medical treatment with reference to life-prolonging procedures, resuscitation and other end-of-life care preferences.  This instrument will only take effect in the event you have a terminal condition, an end-stage condition, or are in a persistent vegetative state.

HIPPA Authorization Form – This legal document allows healthcare providers to share a patient’s protected health information with another party.  The form allows your designated agent to access your medical records and communicate on your behalf if you are unable to do so yourself.

Durable Power of Attorney – A Durable Power of Attorney is a legal document that allows you to appoint an agent or attorney-in-fact to manage your financial and legal affairs.  The “durable” designation means that the agent’s authority continues during your incapacity.  In Florida, the power of attorney is effective upon execution and provides the agent with specific powers as designated by the person creating the instrument.

Guardianship Designations – A guardian nomination is a legal document that allows you to nominate a potential guardian that you trust should you lose the ability to make decisions for yourself due to physical or mental incapacity.  The nomination of a guardian for minor children allows a parent or legal guardian to nominate a person to assume responsibility for the child’s care, custody, and well-being in the event of a parent’s death or incapacity.  While the nomination doesn’t automatically appoint the guardian, it is a strong recommendation to the court, and the court is likely to appoint the nominated individual unless there are significant reasons not to.

1. Filing the Petition: The probate process begins when a petition is filed in the circuit court in the county where the decedent lived. The person seeking to open probate (usually the named personal representative) will file necessary paperwork, including the decedent's will and death certificate.
2. Appointment of Personal Representative: If the court accepts the will, the personal representative named in the will is formally appointed to manage the estate. In the absence of a will, the court will appoint a personal representative.
3. Identifying and Valuing Assets: The personal representative will identify and inventory the decedent’s assets, which may include property, bank accounts, investments, and personal belongings. These assets are then appraised for value.
4. Paying Debts and Taxes: Before assets can be distributed to beneficiaries, the personal representative must pay any valid debts, taxes, and funeral expenses from the estate’s funds. Florida has a creditor claim period, typically three months, for creditors to file claims against the estate.
5. Distribution of Assets: After debts and taxes are paid, the remaining assets are distributed according to the terms of the will or, if there is no will, according to Florida’s intestacy laws. If there are disputes or complexities in the will, the probate court will handle any necessary resolutions.
6. Closing the Estate: Once all assets have been distributed, and all legal requirements are fulfilled, the personal representative will file a petition for the court to close the estate. Upon court approval, the probate process is complete.