Probate and Guardianship Process
Probate is a court-supervised process for identifying and gathering the assets of a decedent, paying the decedent’s debts, and distributing the decedent’s assets to his/her beneficiaries. Probate is necessary to wind up the decedent’s financial affairs and to pass ownership of the decedent’s probate assets to his/her beneficiaries. Probate assets are those assets the decedent owned in his/her sole name at death, or that were owned by the decedent and one or more co-owners but lacked a provision for automatic succession of ownership at death. If the decedent left a Will, the probate process is necessary to verify or prove that the Will is genuine and valid. If the decedent had no Will, probate is still necessary to ensure the ownership of the decedent’s probate assets pass to those persons who are entitled to receive them under Florida law. There are various types of probate administration allowable under Florida law depending upon the value of the decedent’s probate assets and the location of those assets. Our process for assisting clients with a probate administration includes the following:
- Meeting with the decedent’s family and/or beneficiaries to gather all relevant information regarding the decedent, the Will, if any, and the decedent’s probate assets
- Review the decedent’s Will or, if there is no Will, the pertinent law pertaining to intestate succession
- Review and determine values for all of the decedent’s assets, whether probate or non-probate
- Determine who will serve as Personal Representative (Executor)
- Determine the type of probate administration required for the decedent’s probate assets
- Obtain copies of the decedent’s most recent federal income tax return
- Determine whether a federal estate tax return is required to be filed for the decedent’s estate
- Obtain a current list of the decedent’s creditors and outstanding debts
The length of time required to complete the probate process for a particular estate depends upon many factors. Some of these factors include: the value of probate and non-probate assets, whether a federal estate tax return is required to be filed, disputes among the beneficiaries of the estate, the amount of creditors claims filed against the estate, the location of estate assets in a foreign jurisdiction, the availability of liquid assets in the estate to pay administration expenses and creditors’ claims, and title issues with estate assets. With our vast experience in probate and tax matters, we are uniquely positioned to counsel and advise clients in all aspects of the probate process.
The need for a guardianship arises when a minor receives money or other property either as the beneficiary of an inheritance or from a legal settlement. Guardianships for adults are required when they have been determined to be incapacitated by the court. As part of our process for guardianships, we:
- Thoroughly familiarize ourselves with the reason for the guardianship, the amounts involved, any restrictions imposed and the parties involved
- Help determine the proper guardian to be appointed, the related court filings, and obtain court approval of the guardian
- Work with the financial institution to ensure that the money or property is properly invested and funded
- Understand the financial situation of the minor or incapacitated adult and obtain court approval for distributions as needed
- Ensure that all administrative requirements are met with the court on an annual basis, including reports, accountings and court approvals
- Consult and help implement either a direct transfer plan or the establishment of a new trust vehicle when the minor reaches 18 years of age
Guardianships can often become an administrative burden for the client; however, due to our experience and volume of guardianships, we can assist with streamlining this process.
