West Palm Beach Wills, Probate & Advanced Directives Attorney
When you write a will, you can leave assets to whomever you wish, as well as designate guardians for any minor children. However, if you leave no will (die intestate), Florida law dictates who gets your property and, more importantly, who will have custody of your children. Similarly, the failure to create proper healthcare directives makes your wishes for your final days unclear. Your family will wonder, “What would Dad or Mom have wanted?”
Proper estate planning is important for Florida families of all income levels. We make it convenient and simple. When you are ready to think about creating a will, living will or other healthcare directive, contact the Law Offices of Larry E. Bray, P.A., to schedule a consultation with a dedicated West Palm Beach wills attorney. We have three conveniently located offices in West Palm Beach, Lake Worth and Boca Raton.
West Palm Beach & Boca Raton Revocable Living Trusts & Wills
Under Florida law, a will is valid if the creator is at least 18 years old and of legally sound mind. The will must be in writing and both witnessed and notarized by the appropriate parties. A properly executed will allows you to make critical decisions regarding asset distribution, including charitable gifts and guardianship of your children.
In addition, a properly executed will:
- Mitigates tax liability
- Eases the probate administration process
- Ensures smooth transition of business interests
Having a will or revocable living trust can provide you with much-needed peace of mind. It is actually a contract that distributes real and personal property but avoids the need for probate. Our founding West Palm Beach estate planning attorney, Larry E. Bray, will always take the time to explain how a will or trust works and how it can benefit you and your family.
Advanced directives allow you to make decisions regarding the type and extent of medical treatment you want in the event you become incapacitated. Three types of advanced directives include:
Living wills: Specify end-of-life medical treatment that you wish to receive
Durable power of attorney: Grants a trusted person control over your legal and/or financial matters if you become seriously ill
Healthcare surrogate designation: Designates a trusted person to make healthcare decisions
We can help you decide if a will or living will is right for you and your financial or healthcare situation. Contact us to schedule an appointment to discuss these matters. Although it is sometimes difficult to talk about, estate planning makes life easier for the people you care about most. It is the gift of peace of mind.
Understanding the West Palm Beach Will & Probate Process
When a loved one passes away, the loss can be devastating for family members and close friends. Nevertheless, the process of sorting out your loved one’s estate must begin. Probate administration occurs when someone dies with a will that needs to be submitted to a Florida probate court. This is a legal requirement in the State of Florida in order to settle the debts of your loved one’s estate, take inventory of their estate and appraise their property and other assets, and transfer title to the intended beneficiaries who will be receiving those assets. Our West Palm Beach will & probate attorney can provide more information.
If you, or a loved one, drafted and signed a last will and testament, this document likely includes a provision designating an individual or business as your personal representative. This title provides immense responsibility and authority to that designated party. You should not designate someone you do not trust as your personal representative. The representative should be someone you trust and who you believe is capable of handling this tremendous responsibility.
The last will and testament gives your personal representative an outline of how you want your estate assets distributed to your beneficiaries. Probate is the process by which those assets are distributed. This is a legal proceeding occurring after you pass on. A “probate” is often opened when your designated personal representative (usually designated in your will) submits a Petition for Administration to a Palm Beach County Circuit Court.
Probate is governed by the Florida Probate Code featuring a set of statutes and the Florida Probate Rules. This body of regulations establishes the rights, duties, and obligations for persons involved in the administration of a deceased person’s estate.
Let’s say your grandmother passes away and she lived in Lake Worth, Florida. She decided to name you as the personal representative of your estate. You live in Charlotte, North Carolina. What do you do? You probably have a job, family and home to focus on and do not have the time to travel to a different state on a frequent basis to wind down an estate. Traveling to Lake Worth may simply not be realistic. This is where a Florida estate attorney can be a huge help. Experienced Florida estate lawyers can handle Florida probate for out-of-state clients. If you hire an attorney, the following will likely occur:
- The estate attorney will explain the probate process to you;
- The local Lake Worth probate attorney will file the necessary paperwork; and
- The local Lake Worth probate attorney will represent you until the estate is completely settled
Custodian Gets the Process Started
Whoever is in possession of your last will and testament is referred to as a “custodian” in Florida. The custodian should file your will with the clerk of the county where you resided before passing on. So, for example, if your grandfather died when he was a resident of Lake Worth, then his will should be filed with the clerk for Palm Beach County (since Lake Worth is based in Palm Beach County).
If you or a loved one resided in Palm Beach County, the probate process will likely be handled in one of three court houses. In each court house, there is a probate division featuring probate judges who hear cases and will challenges, and oversee probates. Probate judges are assigned to cases and probates randomly. This means that when you file a Petition for Administration and open up an estate, you cannot select your judge. A computer program will randomly assign a judge to your case. The judge assigned to your probate will manage the case and make all decisions regarding the probate process.
In terms of the location of the courthouses, there is a downtown court house located in West Palm Beach on North Dixie Highway. There is also a courthouse in North County located on PGA Boulevard in Palm Beach Gardens, Florida. Finally, there is a South County courthouse located on Atlantic Avenue in Delray Beach, Florida.
Petition for Administration
When the will is filed with the court, it should be accompanied by a Petition for Administration. This legal document essentially opens up an estate in Florida. It should list facts about the decedent, including their full name, Social Security number, names and addresses of family members, and an estimated value of the estate. Yes, it is a lot to ask a family member or friend to handle this complicated process. How, for example, do you get an accurate assessment on the value of your estate? Good question, and it is best posed to a West Palm Beach estate planning attorney. Hiring an attorney provides peace of mind and guidance on how to properly administer an estate.
Serving the Petition
When a petition for administration is filed in a Palm Beach County courthouse, this document will be “served” on all “interested” persons (e.g., family members, friends, etc.). Usually, service is accomplished through certified mail. You may be asking yourself, “Can this be accomplished through e-mail?” The answer is no. The petition must be served in a manner to verify delivery. That is why certified mail is the most popular method of service.
“Answering” the Petition
When an interested person receives a copy of the petition for administration they have the right to file a response within 20 days (also known as an answer). This is set forth in Rule 5.025 of the Florida Probate Code. If a response is not filed within that 20-day window, an interested person is basically waiving their right to respond. That’s right – the probate process will move forward, regardless of whether you respond within 20 days. The burden is in the interested parties to respond.
If you are an interested person in an estate (e.g., named beneficiary, widow, creditor, etc.), contact a West Palm Beach estate attorney and file an answer. Why? Because Florida probate law does not look kindly on a party that fails to take timely action. Florida probate law favors those who participate in the estate administration process and act on their legal rights.
The Probate Process
The personal representative of an estate is appointed by an order from the assigned probate judge. The personal representative handles an array of tasks including receiving “letters of administration” which are court-authorized powers granted to the personal representative to handle the probate. If you have been designated as a personal representative in a friend or family member’s will, you may be asking yourself, “Do I get paid for the work I put into the probate process?” Answer: Yes. You are entitled to “reasonable compensation.” This can be a percentage of the estate value or payment for the hours put into the probate process. The probate judge will determine the reasonableness of your compensation, depending on the time put in and the complexity of the estate.
Obviously, a key objective for the personal representative of an estate is to “settle” the estate and distribute the assets to the pertinent parties. The personal representative is also obligated to pay the just debts of the decedent. The personal representative actually has a duty to creditors to treat them fairly and impartially. But, this does not mean that a personal representative has to pay every single debt. There is a legal process, including a notice to creditors, which provides official notice that there is a Palm Beach County probate. This notice provides creditors three months to file a response. If a creditor fails to respond within that timeframe, you may not be obligated to pay that debt out of the estate’s corpus.
Personal Representatives Can Be Fired
If the personal representative of an estate is not doing a good job, or is not doing anything, or is moving too slowly, a petition may be filed with the probate court by an interested person to remove the personal representative and have them replaced with somebody else. Under Florida Code Section 733.504, there are actually 12 different reasons whereby a beneficiary can seek to have a personal representative removed from that position.
This issue usually arises when a friend or family member was unknowingly designated to be the personal representative of an estate and is simply overwhelmed by the work and time necessary to properly wind down an estate. Again, this is why it makes sense to hire a West Palm Beach estate attorney to help with the process.
Distributing the Estate
The personal representative has the duty to gather all of the estate’s assets. Once those assets are in order and the decedent’s just debts, obligations, and loans are paid off, the remaining assets may be distributed to the interested parties. Interested persons will receive a copy of a petition for discharge from the personal representative. This is the document that is signaling that the Palm Beach County probate is coming to an end. The petition for discharge typically includes a complete accounting of the estate. This petition can also include a plan for distribution, which tells the court which interested person gets what from the estate. This document will also detail the compensation that has been, or will be, paid to the personal representative.
If you submitted an answer to the petition for administration, you have rights when you receive a petition for discharge. If you do not approve of the plan for distribution, or you object to the personal representative’s amount of compensation, you have the right to object. You must file your objection with the probate court and you must specifically state why you object (so you cannot just object out of spite). The probate judge will likely hold a hearing in an attempt to resolve the issue.
Understanding Probate Assets
Keep in mind that the probate administration applies only to assets in the decedent’s estate. You may be asking yourself, “What qualifies as an asset?” Well, probate assets are assets that the decedent owned (in their name) at the time of their death. Here are some examples of probate assets:
A bank account or investment account listed in the decedent’s name. However, if a bank account or investment account owned by the decedent has a payable on death provision or transferable on death provision in which the account is transferred to another party, then it does not qualify as a probate asset.
A life insurance policy, annuity contract or individual retirement account that is made payable to the estate of the decedent is generally considered a probate asset.
If the decedent owned real estate, or had property titled in their name, then that property is considered a probate asset. However, if your decedent owned real estate titled in their name but with one or more other people listed as joint tenants with rights of survivorship, this is not a probate asset.
If the decedent owned property with their spouse, then that property will probably not be considered a probate asset since many married couples own property as tenants by the entirety. This means that the property is transferred to the surviving spouse automatically.
Up to the Judge to Approve
Once the probate assets have been categorized and the petition for discharge is submitted to the court, it must be approved by the probate judge. If the judge does not approve, the personal representative must go back and re-analyze the estate. If a petition for discharge is disapproved, it is usually attributed to problematic accounting or a challenge to the distribution of the estate’s assets. If the discharge is approved by the judge, it will state that the personal representative for the probate wound down the estate properly and that the estate is officially closed via an order of discharge. Once the personal representative of the Palm Beach County probate is discharged, the process is over.
Hire a West Palm Beach Will & Probate Attorney Today
Despite the numerous steps and regulations that must be followed, a Palm Beach County probate can actually be a fairly painless process. The key is to retain competent and knowledgeable legal representation who can help guide you through this process. You will especially need legal guidance if you encounter a dispute over the validity of the Will. At the Law Offices of Larry E. Bray, P.A., we understand that no two estates are exactly alike. That is why our team of experienced West Palm Beach wills & probate attorneys place such a high importance on truly listening to the questions and concerns of our clients. Our goal is to help you make informed and well-reasoned legal decisions through all stages of the probate process. Contact us today to set up a time to go over your legal questions. We are here to help.