"Helping Chart Your Family's Future"

Welcome to our Frequently Asked Questions Page!

PROBATE

Q. What exactly is probate? 

A. Probate is the only legal process to transfer assets from the name of a deceased person to the heirs or beneficiaries. 

Q. Why do I need probate?

A. As mentioned above, if a loved one has passed away and there is an asset that is "stuck" in their individual name then probate is the only process to have that asset transferred to the name of a living person. 

Q. What if my loved one dies without a Last Will and Testament? 

A. This is called intestacy. The State of Florida has laws called the intestate succession laws that will control how the assets are distributed at the time of death. 

Q. What if I know there was a Last Will and Testament but I can only find a copy? 

A. If the original will cannot be located then we must petition the probate court to admit the copy. This process can be challenging as Florida Statutes require all of the intestate heirs to be notified of this process to ensure that the deceased person did not actually intend to destroy their will which was why it could not be located. 

Q. I am named as Personal Representative in my loved ones' Last Will and Testament, why do I need probate to make me the Personal Representative? 

A. A Last Will and Testament simply appoints someone to serve as the Personal Representative, it does not mean that they are required or are qualified to serve under Florida Law. The probate process and admitting the will to probate is the only way to legally become a Personal Representative. 

Q. I was told I needed Letters of Administration. What are Letters of Administration?

A. A Letter of Administration is a court order that appoints a Personal Representative in Florida. This document can only be obtained by opening a formal administration through a Florida probate court.  

Q. Do I owe the debt of my deceased loved one? 

A. In short the answer is no. However, if you have signed documents agreeing to be responsible for the debt, then you are likely responsible.  This information does not apply to debts that are secured by collateral, such as a car or home, or joint debts with a living person. 

Q. What is the difference between a formal probate and a summary probate proceeding? 

A. The main difference is that a formal administration has a Personal Representative (executor) appointed and a summary administration does not. There are other differences such as asset limits, accounting requirements, and creditor notices, but the appointment of a Personal Representative is the big one. Typically, we find that most clients like the idea of a summary administration due to the straightforward nature, but in most scenarios a formal administration is better suited to handle the legal issues at hand. 

TRUST ADMINISTRATION

Q. What is a trust administration?

A. It is the process of a successor trustee accepting their fiduciary position, identifying the assets, collecting the assets, accounting for the assets, and distributing the assets to the beneficiaries. 

Q. I am named as the successor trustee in a trust, why do I need to sign documents to accept the position?

​A.  Being a successor trustee is a fiduciary position. This means that you are taking on duties and confirm that you will adhere to the laws of the State of Florida and have accepted a duty to the beneficiaries. Thus, you have the option to serve as a successor trustee or not serve. If you choose not to serve the trust will have a secondary option for another person to serve or for the beneficiaries to determine who they choose to serve. 

Q. Can I sell trust real estate as the trustee?

A. Yes. However, there are certain scenarios where you will not be able to sell such as homestead issues or where the property is a specific gift to a beneficiary. 

Q. Why do I need to account for all of the trust money?

A. As the Successor Trustee you have accepted the duties to inform and account to the beneficiaries of the trust. The beneficiaries have a legal right to know how the amount being distributed to them was determined. You must provide an accounting, or the beneficiaries may choose, to waive the required accounting. 

ESTATE PLANNING

Q. I am not wealthy, why do I need a will?

A. A will is a valuable document, even if you have not amassed a fortune in your lifetime. There are many times when individuals have passed not having two nickels to rub together but because of the way they died there were assets to recover at death, such as auto accident, medical malpractice, or negligence claims. Therefore, we always recommend that any person over the age of 18 have a last will and testament in place. 

Q. What are powers of attorney?

A. Powers of attorney are documents that allow another person (an agent) to make decisions for you during your lifetime. Our firm prepares two types of powers of attorney, one for financial matters and another for health care matters. 

Q. Can I use a power of attorney for a loved one when they pass away?

A. No. A power of attorney is only valid if the person granting you the power is living. Once they die, so does the power. 

Q. What is a Pay on Death (POD) account?

A. A POD account is an account that has a beneficiary named on it. Meaning, that the account owner named a person or persons to be the owner of the account once they passed away. This is a free and effective way to avoid probate on bank accounts. 

Q. What is a trust and do I need one?

A. A trust agreement is basically a contract between you as the writer of "Grantor" of the trust and you as the initial trustee. The contract states that when you pass you have selected someone to be the successor trustee and that person will distribute the trust assets as you have outlined. Revocable living trusts can be a great tool to avoid probate on real estate, to provide for family members that have special needs and minor beneficiaries. If you have real estate or want to provide for family members, a trust may be for you. 

This is intended for informational purposes only and is not intended to replace the legal advice of a qualified Florida attorney. If you have specific questions please contact our office at (352) 686-7331 or 

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