Areas of Representation for Probate Law
- Administration (representing personal representative)
- Litigation – will contest, breach of fiduciary duty, beneficiary rights
- Elective share
- Ancillary probate (secondary probate in a state other than where the Decedent was domiciled, but had assets)
- Power of Attorney
- Abuse of POA
- Medical Surrogate
If you are a beneficiary or personal representative or a family member of an individual that has passed away and have concerns about an estate matter or protecting your inheritance then please call David F. Pleasanton, P.A. at 561-433-0955 to schedule an initial consultation.
Probate is the name given to the procedure for gathering assets, paying creditors, and distributing the assets of a deceased individual to his or her heirs or beneficiaries.
Probate proceedings can be initiated by a creditor, beneficiary, friend, or heir of the Deceased. This is accomplished by filing a Petition for Administration and the Last Will, if a will exists. The Personal Representative is the person or entity that administers the estate. The Personal Representative can be a Florida bank or trust company, a resident or non-resident of Florida. Non-Florida residents can serve as the Personal Representative if they are the Deceased spouse or close relative.
If an individual or entity is named as the Personal Representative in the Last Will of the Deceased the Court will have them serve as the Personal Representative if they are otherwise eligible. If there is no such person or entity named, or if named they are unwilling to serve, the person or entity chosen by the majority of the beneficiaries or heirs can serve.
A Personal Representative must retain an attorney to file the necessary legal pleadings.
A surviving spouse and minor children of the Deceased are entitled to a family allowance. A surviving spouse is also entitled to an elective share, which is 30% of the Estate.
Assets that are jointly titled, such as real estate titled as “Joint Tenants with Right of Survivorship”, bank accounts titled either jointly or “Pay on Death”, most life insurance, and retirement accounts do not normally pass through the probate estate. All other assets of the Deceased are part of the probate estate.
If the Deceased did not have a will and had a surviving spouse, but no lineal descendants, the surviving spouse is entitled to the entire estate. If there is a surviving spouse and lineal descendant(s), and all lineal descendant(s) are also descendants of the surviving spouse, the surviving spouse will receive the first $60,000.00 of the probate, estate. plus one half (1/2) of the remainder of the probate estate. The remaining portion of the probate estate will be equally distributed amongst the lineal descendant(s).
If there is no surviving spouse, then each child is entitled to an equal share of the probate estate.
If estate tax is owed, the Internal Revenue Code provides that the estate shall pay the tax. This payment may come from a trust, life insurance, or other assets passing directly to beneficiaries outside of the probate estate.
Wills, Trusts, and Living Wills
Estate planning is essential to protect your family’s assets, minimize estate taxes, and to let family members and medical providers know what steps you want taken to prolong your life, if you are terminally ill and unable to communicate your own wishes.
Estate planning is extremely personalized, and may involve a number of legal documents, including:
- A Will, which is the document you use to direct the final distribution of your assets after death. Parents with minor children may use wills to designate the legal guardian of their child in the event that both parents are deceased.
- A trust, which is a means of holding assets so that the trusts survives the death of the maker, thereby avoiding probate. In larger estates, revocable trusts are a major tool used to reduce or eliminate estate taxes.
- A Living Will, which informs any medical care givers that you do not want artificial, life-prolonging techniques or procedures such as feeding tubes, if you are in a terminal condition without hope of recovery.
- Health Care Power of Attorney (Medical Surrogate,) which allows you to designate a trusted family member or friend to make medical decisions on your behalf if you become incapacitated.
- Durable Power of Attorney allows another person to make decisions and transact your business the same as if you were doing it yourself. It has the added benefit of allowing another to act for you, even if you become mentally incapacitated.
David Pleasanton has extensive experience with Estate Planning and Probate. Call Today.