Is there a way to avoid Probate?
PROBATE is a court-supervised legal process of settling a deceased person’s estate, which includes paying creditors or debts, and distributing the assets of the deceased to the correct beneficiaries. It is a complicated procedure, involving costs for a probate attorney, personal representatives fees, court costs and possibly accountants and other experts. The process must be followed explicitly, so that when a beneficiary inherits assets, they will be free from future claims, and the beneficiary will be able to sell the asset without surprise delays or liens.
GUARDIANSHIP is also a court-supervised legal process.
When a guardianship has to be established, many fees, costs and delays are incurred, in addition to wasted time and frustration:
Filing fees to the Court.
Fees and costs for the attorney filing to establish the guardianship.
Fees and costs for the attorney that the court appoints for the incapacitated person.
Fees and costs for the three medical/psychological professionals named by the court to be on the examining committee.
Fees and costs for on-going supervision by the courts, preparation of accountings, reports and other court-ordered requirements.
The person who is to be named as guardian (for example, the person’s child) will have to complete and submit a lengthy application that requires the disclosure of detailed personal information regarding arrests, substance abuse and other matters, and take a lengthy training course.
All of this, even if you are trying to care for your own mother!
The good news is that this can, in almost all cases, be avoided with the right documentation, with which you essentially OPT-OUT of the Florida Probate and Guardianship Processes.
To do this, our West Palm Beach estate planning lawyers recommend a Will, Revocable Living Trust, Written Statement for Personal Property, Living Will, Health Care Surrogate Designation, a Durable Power of Attorney and a Designation of Pre-Need Guardian.
A Brief Description of the Documentation:
Will — You, not the state statutes, designate who is to receive your property at your passing, who will manage this process through the courts (“Executor/Personal Representative”) and, if you have minor children, who you want to raise them in the event that both of their parents are gone.
Revocable Living Trust– You, not a judge that you have never met, designates how and where you are to be cared for when you are unable to care for yourself, and who will be the decision-maker for you and your assets. Your Revocable Living Trust can be changed by you at any time depending on your circumstances, and you can include provisions that take effect at your death, that will protect the assets that you want to go to your children, from the claims of their spouses and creditors.
Written Statement for Personal Property — In this document, which you can fill out, sign and date at home without witnesses or a notary present, you name persons who are to receive items of your personal property, such as jewelry, collections, furniture, automobiles and other tangible personal property. It cannot be used to transfer property used in trade or business, or for real estate or intangible property, such as bank accounts or an interest in a company. You can change it, replace it or cancel it altogether, also without witnesses, a notary or legal fees. In order to be valid, this “Written Statement” must be provided for in your Will.
Living Will — In this document, you express your wishes as to whether you want to be kept alive “by machines” if the only result is to prolong your passing. Without such a document, family battles and litigation can ensue, while you may be suffering in a hospital bed.
Health Care Surrogate Designation — If you do not name a Surrogate, other persons, even your spouse or parents, may not be able to give consent to medical treatment, or even be given the status of your condition, for example, after an automobile accident. With this document you designate a person (“Surrogate”), most often a spouse or adult child (and alternates for them — such as a brother or sister), to make medical decisions for you if you cannot make them for yourself. The Surrogate is also authorized to receive medical information about you and obtain medical records. Our West Palm Beach estate planning attorneys also recommend that you have these documents in place for your adult children, if they are unmarried, and if they are married, that you encourage them to have this kind of documentation in place.
Durable Power of Attorney — This document permits another person to pay your bills and make decisions regarding your property, and generally do anything that you could do if you were personally present, regardless of whether you may be unable to manage your own affairs.
Designation of Pre-Need Guardian — This document expresses your wishes in naming a guardian for you in the event that the other documents are challenged, or other circumstances require that a guardianship be established.
If you are interested in avoiding the costly, time-consuming probate process, contact us today.