Wills are documents that are meant to reflect the last wishes of the deceased person and how they would like their estate to be distributed.
Sometimes, however, when the personal representative or beneficiaries of a will look over these final documents, they do not trust the validity of the will. In other cases, the intentions of the representative are less than genuine.
Below are several specific problems that a knowledgeable Florida probate lawyer can help you to work through so that litigation isn’t necessary:
Problem: the Representative Is Not Doing His or Her Job – The role of personal representative can be overwhelming, especially if the person is still in the process of grieving the deceased, or they do not have experience navigating the world of probate. If a personal representative is failing to meet his or her duties, or is not acting as the deceased would have wanted, then the probate process may be handled incorrectly – or not done at all. If this occurs, beneficiaries can petition the court to remove the personal representative.
Solution: Having an experienced probate attorney to help can prevent this from occurring. He or she will supervise the actions of the representative to make sure that everything they do meets both the requirements set down in the will and all applicable Florida laws. Additionally, working with a probate lawyer decreases the chances of having a lawsuit in the future because they will collect documentation and receipts and handle the final accounting.
Problem: The Will Is Called into Question – There are many reasons why beneficiaries or others might question a will’s validity. This can lead to litigation in the form of a will contest. While a personal representative is able to continue with most administrative duties in the middle of a contest, property that is addressed in the contest must not be distributed until the will is challenged in court and a decision is made. As you might imagine, this causes huge delays for everyone, costs quite a bit of money, and may even potentially fracture relationships.
Solution: In Florida, a will is only valid if the following things are true:
- The testator was of sound mind while drafting the will
- The will was signed by the testator (or by another person who was directed by the testator/in the presence of the testator)
- The will was signed in the presence of two competent witnesses
- The two witnesses also signed the will in the presence of the testator and each other
A knowledgeable estate planning lawyer will not only ensure that proper procedures are followed in the creation of the will, he or she will be able to provide evidence to this effect.
Problem: Surprise Creditors Come Calling – You’ve probably heard something to this effect before, “When someone dies, anyone they ever owed money to comes crawling out of the woodwork.” The meaning is simple: creditors view someone’s death as a final opportunity to get any money they’re owed, so they make a strong effort to do just that. If creditors are not accounted for, it can significantly delay proceedings and drastically alter the inheritance of beneficiaries.
Solution: A probate attorney helps to prevent creditor disputes by notifying all of them about the death. This gives them a chance to come forward to claim what is owed to them within a certain time limit, and can prevent later confusion and legal trouble. Along these lines, estate planning lawyers also assist on tax-related matters, including minimizing payments and filing necessary documents.
Problem: There’s No Will – Every state has rules and laws in place to deal with estates where no will has been created – Florida is no exception. It’s called intestate succession. Because of this, you would think this process would be pretty straightforward and simple. And for the most part, it is. When there’s no will, probate assets go to spouses or domestic partners, children, and blood relatives, with spouses getting the most, children less, and so on. But some assets aren’t passed down through wills, and this can be confusing and lead to problems.
Solution: A skilled Florida estate planning lawyer can help you to identify which assets do not have to go through probate and get them to the proper recipients in a timely fashion. Some examples include:
- Property in a living trust
- Life insurance proceeds
- Funds in your IRA, 401(k), or retirement accounts
- Securities in transfer-on-death account
- Payable-on-death bank accounts
- Property owned in a joint tenancy/tenancy by the entirety
How to Avoid Problems with Probate Administration
Proper estate planning will help you and your loved ones avoid many of the above probate issues. For example, transferring many of your assets to trusts or specific bank accounts will reduce the amount of assets that have to go through the probate process. Updating your will regularly and explaining your desires to beneficiaries also makes it less likely to be contested.
If you are a personal representative dealing with any of these issues, or want to prevent any of these situations from happening to your loved ones after your death, contact a Florida probate lawyer today.
About the Author:
Christopher Q. Wintter is the President of Wintter & Associates, P.A. , a four-lawyer trust and estate firm. Mr. Wintter is a Florida Bar Board-Certified Expert in Trust and Estate Law. With more than 28 years’ experience as a practicing attorney, he also serves as an instructor and faculty member for the National Institute of Trial Advocacy (NITA)—the nation’s leading provider of legal advocacy skills training to practicing attorneys—and has earned the AV® Preeminent™ rating with LexisNexis Martindale Hubbell. He was also selected for inclusion in Florida Super Lawyers Magazine for 2011, 2012, and 2014-2016 in Estate and Trust Litigation, and was selected for inclusion to the Best Lawyers in America in 2016 in the area of Estate and Trust Litigation.