Probate Litigation

Estate planning is the process of planning for the disposition of one’s assets to intended or specified beneficiaries. The ultimate result of estate planning is either Probate administration or assets passing outside of probate. For instance, all assets titled to one’s individual name will pass in accordance with the terms of the Last Will and Testament (without court supervision). Any assets titled to a revocable living trust pass outside of probate. Property titled jointly also passes outside of probate.

Probate litigation usually doesn’t begin long after a person passes and the Last Will and Testament is submitted to the court for probate. Probate litigation occurs within the formal probate administration and can arise for many reasons. The most common reasons for probate litigation are beneficiaries challenging the estate planning documents and/or power holders for undue duress, lack of capacity or breach of fiduciary duties by a personal representative and/or trustee.

Lack of capacity where a decedent was found not to have had the original capacity to execute a last will and testament. Undue duress often occurs with the elderly and involves a position of trust such as a non-familial caregiver named as the beneficiary of an estate a few days prior to that person’s death. In other words, the caregiver may have taken advantage of the weakening health or dementia of the deceased person in order to permeate themselves into a will to the detriment of the rightful heirs. Breach of fiduciary duty is known as any intentional fraud or negligence in the accounting or the distribution of estate and/or trust assets and/or the failure to safeguard estate assets reasonably and prudently.

Contact the Attorneys of The Noble Law Firm, P.A. to assist you with your probate litigation and/or other legal needs.

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Purpose of Incapacity Planning in Estate Planning

Incapacity planning plays a huge part in estate planning because most people become incapacitated before they pass away. Incapacity planning documents include the health care surrogate designation, living will and durable power of attorney. The health care surrogate designation appoints individuals who will make health-related decisions on your behalf. The living will states which life prolonging measures you prefer (or don’t prefer) your agents to take. The durable power of attorney appoints individuals who will make financial-related decisions on your behalf. In Florida, the financial power of attorney must be durable. In other words, it cannot “spring” into effectiveness upon incapacity. Other states, however, allow for the springing power of attorney. The durable power of attorney statute further dictates certain powers that must be separately initialed by you to be effective.

Most individuals don’t fully understand how important incapacity planning is in an estate plan. If you don’t plan for your incapacity, then you may subject your family and/or close friends to an expensive and time-consuming guardianship process. Where there are no documents stating agents for incapacity, agents must be appointed by the court. The guardianship process can easily cost thousands of dollars and can take months to even years with the clogged up court systems.

Even after a guardian is appointed, the court will continue to monitor the guardianship every year (pursuant to additional fees) and approve major actions and decisions made by the guardian(s). All this can be avoided by executing the above mentioned incapacity planning documents (health care surrogate designation, living will and durable power of attorney) along with your last will and testament.

Contact the Attorneys of The Noble Law Firm, P.A. to assist you with your estate planning and/or probate needs.

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Digital Estate Planning

Digital estate planning has become more of a necessity in the past few years with the emergence of the Internet and growing online presence. Nowadays, almost every individual has at least one online account, whether it is social media, e-mail or online banking. Have you every asked yourself what will happen to these online accounts when you pass away? This is an important question to ask as many of these accounts have personal information and/or auto payments that will need to be administered along with other assets.

In general, your estate plan consists of your declaration of health care surrogate, living will, durable power of attorney, last will and testament and in some cases a revocable living trust. Digital estate planning assets consist of online accounts such as banking, Facebook and Twitter, credit cards and could even include online shopping accounts such as amazon. Failure to inventory these assets may lead to your estate incurring unauthorized charges after your death and/or make it extremely difficult for your personal representative to access such accounts.

By creating a digital estate plan, you can help your family by:

  • Locate any accounts you have online;
  • Access those accounts or the information in those accounts;
  • Safeguard online data from hackers;
  • Attach financial value to your digital property; and/or
  • Distribute and/or transfer any digital assets to designated beneficiaries parties.

The first step to creating a digital estate plan is to itemize all of your online accounts and then inventory usernames and passwords (including recovery password information). Remember that your e-mail is the center of most of your accounts; therefore, it is most important to inventory your e-mail credentials. Next, you must choose a safe place for such data. This could include a safety deposit box, a personal safe or submitting the information directly to your personal representative. Having this information documented will allow your estate to bypass the problems of accessing your online accounts and make the probate process easier.

Contact the Attorneys of The Noble Law Firm, P.A. to assist you with your estate planning and/or probate needs.

 

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Formal Probate Administration

Probate administration is the process of passing one’s assets to family members (also referred to as beneficiaries). If an individual passes away with probate assets exceeding $75,000, their estate must be administrated formally.

Formal probate administration requires the filing of many documents with the court. The personal representative (or executor) may also retain a law firm to file the probate documents on their behalf. The personal representative must first file a Petition with the court asking to open the estate and for the formal permission to administer the estate. Proof that such individual is the correct personal representative is contained in the last will and testament and is submitted along with the Petition. If the court finds sufficient authority, letters of administration are issued to the personal representative. The letters of administration are used to prove an individual’s authority to administer an estate to third parties.

The personal representative must collect the assets of the estate and keep them safeguarded throughout the duration of the probate administration (this may include running a decedent’s business). The personal representative is required to notify all potential creditors that a probate has been opened and give them sufficient time to file a creditor claim for payment. If a creditor files a claim, the personal representative can either object to the claim or pay the claim. There may also be negotiations with creditors to lower the total payout in exchange for the release of the creditor claim.

Prior to closing an estate, the personal representative must present the court and the beneficiaries with an inventory of the assets and an accurate accounting. Once all of the creditors have been paid or have waived their claims, a Petition to close the estate must be submitted to the court. Upon the court’s order, a distribution of assets to beneficiaries occurs.

Contact the Attorneys of The Noble Law Firm, P.A. to assist you with minimizing your probate assets or with the probate administration of a loved one’s estate.

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