Palm Coast Probate Attorney - Wills and Guardianship

ELIZA PUCHALSKI, ESQ. HANDLES ISSUES OF :

- WILLS.

WHAT IS A WILL?

A will is a written direction controlling the disposition of property at death. The laws of each state set the formal requirements for a legal will. In Florida: 1. You, the maker of the will (called the testator), must be at least 18 years old. 2. You must be of sound mind at the time you sign your will. 3. Your will must be written. 4. Your will must be witnessed and notarized in the special manner provided by law for wills. 5. It is necessary to follow exactly the formalities required for the execution of a will. 6. To be effective, your will must be proved in and allowed by the probate court.

No will becomes final until the death of the testator, and it may be changed or added to by the testator by drawing a new will or by a "codicil," which is simply an addition or amendment executed with the same formalities of a will. A will's terms cannot be changed by writing something in or crossing something out after the will is executed. In fact, writing on the will after its execution may invalidate part of the will or all of it. http://www.floridabar.org

WHAT CAN BE ACCOMPLISHED BY A WILL?

1. You decide who gets your property instead of the law making the choice for you. 2. You may name the personal representative (executor) of your will as you choose, provided the one named can qualify under Florida law. A personal representative is one who manages an estate, and may be either an individual or a bank or trust company, subject to certain limitations. 3. A trust may be created in a will whereby the estate or a portion of the estate will be kept intact with income distributed or accumulated for the benefit of members of the family or others. Minors can be cared for without the expense of proceedings for guardianship of property. 4. Real estate and other assets may be sold without court proceedings, if your will adequately authorizes it. 5. You may make gifts, effective at or after your death, to charity. 6. You decide who bears any tax burden, rather than the law making that decision. 7. A guardian may be named for minor children. http://www.floridabar.org

WHAT HAPPENS WHEN THERE IS NO WILL?

If you die without a will (this is called dying "intestate"), your property will be distributed to your heirs according to a formula fixed by law. Your property does not go to the State of Florida unless there are absolutely no heirs at law, which is very unlikely. In other words, if you fail to make a will, the inheritance statute determines who gets your property. The inheritance statute contains a rigid formula and makes no exception for those in unusual need.

When there is no will, the court appoints a personal representative, known or unknown to you, to manage your estate. The cost of probating may be greater than if you had planned your estate with a will, and the administration of your estate may be subject to greater court supervision. http://www.floridabar.org

- TRUST

The revocable, or “living,” trust is often promoted as a means of avoiding probate and saving taxes at death. The revocable trust has certain advantages over a traditional will, but there are many factors to consider before you decide if a revocable trust is best suited to your overall estate plan. http://www.floridabar.org

IS A TRUST A SUBSTITUTE FOR A WILL?

No, in most situations. A trust may be used in addition to a will. This is because a trust can handle only the property that has been put into it. Any property of a person that is not placed in the trust either during life or at death in most instances escapes the control of the trust. It is the will that controls all property in a decedent's name at the time of death if the will is drafted properly. Trusts can be helpful to speed administration and save taxes if they are drafted properly and funded during life with the property intended to be transferred by the trust. Often, however, improperly drafted or incorrectly funded or administered trusts can add to the cost of settling estates, not lower it. Furthermore, it is the probate of the will that can clear creditors' claims, which is not possible with just a trust administration http://www.floridabar.org

- PROBATE LAW.

WHAT IS PROBATE?

Probate is the court-supervised administration of a decedent’s estate. It is a process created by state law to transfer assets from the decedent’s name to his or her beneficiaries. A personal representative is appointed to handle the estate administration. The probate process ensures that

creditors, taxes and expenses are paid before distribution of the estate to the beneficiaries. The personal representative is accountable to the court as well as the estate beneficiaries for his or her actions during the administration. For probate estates having less than $75,000 of non-exempt assets, Florida law provides a simplified probate procedure, known as summary administration. http://www.floridabar.org

- GUARDIANSHIP OF ADULTS AND CHILDREN

WHAT IS A GUARDIANSHIP?

A guardianship is a legal proceeding in the circuit courts of Florida in which a guardian is appointed to exercise the legal rights of an incapacitated person. http://www.floridabar.org

WHAT IS A GUARDIAN?

A guardian is an individual or institution such as a bank trust department appointed by the court to care for an incapacitated person-called a "ward"-or for the ward's assets. http:// www.floridabar.org

IS GUARDIANSHIP THE ONLY MEANS OF HELPING AN INCAPACITATED PERSON?

No. Florida law requires the use of less restrictive alternatives to protect persons incapable of caring for themselves and managing their financial affairs whenever possible. If a person creates an advance health care directive and a durable power of attorney or revocable living trust while competent, he or she may not require a guardian in the event of incapacity. http:// www.floridabar.org

WHAT ABOUT GUARDIANS FOR MINORS?

A child's parents are the child's natural guardians and in general may act for the child. In circumstances where the parents die or become incapacitated or if a child receives an inheritance or proceeds of a lawsuit or insurance policy exceeding $15,000, the court must appoint a guardian. Both parents or a surviving parent may make and file with the Clerk of the Court a written declaration naming a guardian of the child's person or property to serve if both parents die or become incapacitated. A guardian may also be designated in a will in which the child is a beneficiary. http://www.floridabar.org

Serving Flagler, Volusia, St. Johns, and Duvall Counties. Fluent in English, Russian, and Polish.