Estate planning attorney specializing in Wills, Trusts, Estate Planning, Probate, Estate Administration, and Probate Litigation, serving West Palm Beach, Delray Beach, Boca Raton, Broward, and Miami-Dade.

South Florida Wills, Trusts, and Estate Planning

Andrew assists clients who want to provide for their family by creating a will or establishing a revocable living trust, by executing a durable power of attorney to delegate legal duties to a loved one or trusted friend, and by drafting advanced healthcare directives such as a Living Will or a Designation of Healthcare Surrogate.

Last Will and Testament

A Last Will is a formal writing that designates an individual (or financial institution) as the Personal representative of a person’s probate estate. The Last Will also names individuals (or organizations) that are to receive probate assets after a decedent’s death.

A Florida Last Will must be executed in writing with the proper formalities under Florida law. A Florida Codicil is a short amendment to a Will that also requires the same formalities as the Lasg Will. A Last Willy only becomes effective at the time the Testator passes away, and it can be modified or amended at any time before death.

Revocable Trust

A Revocable Trust is a written instrument that becomes effective at the time of execution. The purpose of this type of trust to provide a mechanism for the person creating the Trust (the “Grantor”) to hold assets titled in the name of the Trust so that upon passing away the assets within the Trust are controlled by a successor trustee to distribute the assets to the Grantor’s selected beneficiaries.

The Revocable Trust allows the Grantor to maintain complete control over his/her assets, and it also allows the Grantor to specify how the assets of the Trust should be distributed to specific beneficiaries after the Grantor passes away. For example, Trust monies can be assigned for specific purposes (such as higher education) for a beneficiary who has just turned 18, and then the balance of said Trust money can be distributed to that beneficiary upon reaching an older age or upon graduating from college.

Durable Power of Attorney

A Durable Power of Attorney is an amendable legal instrument that allows a person (the “Principal”) to delegate specific legal authorities or duties to another person (the “Agent”). A Durable Power of Attorney becomes effective at the time of execution, and it remains effective during any incapacity of the Principal.

A Durable Power of Attorney typically grants an Agent the broadest legal powers to act on behalf of the Principal and is often an effective mechanism to avoid the need for Guardianship proceedings upon the Principal becoming incapacitated and/or losing mental capacity to manage his/her own affairs.

Living Will

A living will is a legal document through which an individual can state his or her wishes with regards to medical treatments that may artificially prolong his or her life. Living wills provide directions to family members and to doctors and nurses in the event that a person is unable to state his or her wishes during a medical emergency or prolonged illness. A Living Will also assists a family regarding what type of life-prolonging treatments a loved one wishes to receive.

Designation of Healthcare Surrogate

This legal document appoints a health care surrogate or proxy with the power to make all health care decisions on a person’s behalf should that person become incapacitated or become unable to make such decisions. A healthcare surrogate is required to make health care decisions on the basis of how the surrogate believes the Principal would have acted if he or she was able to do so.

Probate and Estate Administration in South Florida

Probate and Estate Administration is a court-managed process where the assets of the decedent are managed and distributed according to the decedent’s Will (testate) or according to Florida law (intestate). This process includes the marshaling of all of a decedent’s probate assets as well as the payment of the decedent’s valid debts.

Florida probate court proceedings are required when a decedent was a Florida resident owning assets in Florida without a beneficiary designation or joint owner, or if the decedent owned real property in Florida in his or her sole name.

Florida probate proceedings can be conducted through either a formal administration process or a summary administration process. Summary administration is allowed where the assets of the deceased are less significant and less complex, or when more than 2 years has passed since the decedent’s death.

Probate & Trust Litigation

Probate Litigation is the legal process of challenging or defending provisions of a decedent’s estate planning documents within the Probate Court.

Types of Probate and Trust Litigation

Disputes or problems in probate or trust proceedings can take many forms and may include:

1. Objections to how the will has been interpreted. This can arise where provisions of the will or trust are vague or open to multiple interpretations.
2. Determination of beneficiaries/heirs where there is no will or no immediate family members.
3. Objections to the actions of the personal representative assigned to oversee the estate or trust, such as a failure to properly administer the estate.
4. Objections to the accounting of the estate or trust or a request to have the assets of the estate or trust properly accounted for.

However, the most common type of probate litigation is a will or trust contest. Wills and Trusts are often challenged in Florida courts and can be a source of lengthy and emotional litigation.

Will and Trust Contests

Under Florida law, beneficiaries, heirs and other interested parties to an estate have 90 days from a Notice of Administration to file a lawsuit contesting a will. Trust beneficiaries will usually have up to 6 months to challenge the validity of a Trust.

Will and Trust contests can be based on several different grounds under Florida law. An individual may raise one or more of these issues before a court.

1. Mistake in Execution: If a will or trust is not properly executed as required under Florida law, the will or trust is not valid and cannot be used for administration.
2. Undue Influence: A will or trust must be signed when an individual is free from improper influence and is capable of making independent decisions. If there is reason to believe that the deceased was coerced or tricked in making or amending the will or trust by a person who was in a position of trust and control, then the will or trust might be subject to undue influence.
3. Lack of Testamentary Capacity: In order for a will or trust to be valid, the person making the will or trust must have had the necessary mental capacity to understand the true nature of the document, the assets in their possession, and the family members or loved ones who would be receiving such property.

Will and trust contests based on these grounds may result in extensive litigation, including testimony by family members and interested parties, use of medical records and family documents and possibly the use of experts.