(813) 759-1224

Wills, Probate & Guardianship Attorneys

The Peace of Mind that probate will not be a nightmare for your heirs.

Plant City Probate Lawyers

Probate Practice Areas

Probate and estate planning law includes legal assistance in making wills, powers of attorney, heathcare surrogates, living wills and the probate of wills and estates without wills. Avoiding probate through placing assets into trusts is another popular way of estate planning.

Guardianship law involves the appointment of persons to act on behalf of incapacitated persons to protect their physical well being as well as their finances. 

Probate and guardianship matters can be contested and end up in court battles to decide issues between persons interested in guardiaship and probate proceedings.

Attorneys Johnnie Byrd and David Barnhill have over 60 years combined legal experience in probate law.

We are ready to fight for your rights and protect your future.

 

 

 

1. Probate

Probate is the process for winding up the affairs of a person who is deceased. There are several levels of probate in Florida based on the size of the estate and other factors. We can help you probate an estate to smoothly transfer assets to the deceased’s beneficiaries.

2. Estate Planning

Estate planning is the process of deciding how your property will pass at your death. The process also includes designating persons to handle your  financial and medical affairs should you become incapacitated. We help you find the peace of mind you that your estate plan is complete.

3. Wills

A good estate plan makes sure your intended beneficiaries are taken care of at your death. Making a last will and testament is one way to take control of the situation.  If you don’t have a will or trust, Florida law will control who receives your property at your death.

4. Trusts

Trusts avoid the cost and delay of probating a will. The maker of the trust transfers his or her property into the trust so that the property passes to the beneficiaries at death without probate. Of course, the trust can be revoked or amended prior to death or incapacity.

5. Will Contest

A will or other instrument can be contested by any interested party who believes the person making the will was coerced into signing or taken advantage of through the undue influence of another person who benefits from the will. We can explain your options to contest a will.

6. Guardianship

Guardianships can be for persons who are incapacitated as well as for minor children who have the need for a guardian of their person or property. Guardianship proceedings are complicated. So, an experienced attorney is necessary to pursue guardianship. 

1. Plant City Probate and Estate Lawyers

 

Summary or Formal Administration?

There are two levels of probate in Florida depending upon the complexity of the estate:

  1. Formal administration. A full administration of larger estates requires the appointment of a personal representative who will identify the assets of the estate and pay creditors, followed accounting to and distribution of the estate assets to the intended beneficiaries.
  2. Summary Administration. For smaller estates, there is a lower level of probate called ‘summary administration’ designed to quickly close out small estates where the deceased has been dead for two years or the value of the assets is less than $75,000.

 

Florida Summary Administration

Smaller estates can be settled quickly in a procedure known as ‘summary administration’ when it appears:

  1. If the deceased had a will, that the decedent’s will does not direct administration as required by chapter 733.
  2. That the value of the entire estate subject to probate, less the value of property exempt from the claims of creditors, does not exceed $75,000 or that the decedent has been dead for more than 2 years.

Summary Administration avoids the necessity of the appointment of a personal representative and notice to creditors can be avoided since the beneficiaries become individually liable for the claims of creditors by taking their share of the estate. Summary administration is very useful in cases where there are no creditors or only a few identifiable and cooperative creditors who are willing to make ‘arrangements’ with the beneficiaries as to the payment of their claims.

     

    Florida Formal Administration

    When a person dies leaving a valid last will and testament, and there are assets that were owned by the deceased, there may be a necessity to ‘probate’ the will and begin the administration of the estate in the appropriate Florida court. Not all wills must be probated. If all the deceased assets were titled in such a way that title passed automatically by operation of law to the intended beneficiary, there may be no need to probate the will. However, Florida law does require that the will be ‘deposited’ with the Clerk of the Court for safekeeping.

    Petition for Administration

    The probate proceedings begin with the filing of a petition with the court to open the administration and prove the will to be the valid will of the deceased.

    Proof of Wills

    A document purporting to be a will is proved as provided in Florida law as follows:

    733.201 Proof of wills.

    (1) Self-proved wills executed in accordance with this code may be admitted to probate without further proof.

    (2) A will may be admitted to probate upon the oath of any attesting witness taken before any circuit judge, commissioner appointed by the court, or clerk.

    (3) If it appears to the court that the attesting witnesses cannot be found or that they have become incapacitated after the execution of the will or their testimony cannot be obtained within a reasonable time, a will may be admitted to probate upon the oath of the personal representative nominated by the will as provided in subsection (2), whether or not the nominated personal representative is interested in the estate, or upon the oath of any person having no interest in the estate under the will stating that the person believes the writing exhibited to be the true last will of the decedent.

    Personal Representative

    A personal representative, usually nominated in the will, is appointed by the court to manage the affairs of the estate. The deceased is allowed to nominate the persona he or she desires to act in this capacity, but the Court retains the ultimate control over who is appointed. The personal representative may be required to post a fiduciary bond, but the deceased can waive the bond by language in the will requesting that the bond be waived. Again, the court controls the making or not of a bond.

    Powers of Personal Representative

    The personal representative has broad powers to act without court order in and about the normal activities of gathering the assets of the estate, paying claims of creditors, hiring professionals, such as lawyers, accountants or appraisers, and other routine matters needed to settle the estate.

    Creditors Claims

    The personal representative must give notice to all known creditors and publish a notice to creditors in a newspaper in order to identify the claimants and amount of claims against the estate. Claims are normally required to be filed within three months of the publishing the notice to creditors.

    Accountings and Final Distribution

    After the assets are identified and gathered and all the claims are paid, the personal representative must file and accounting and make a proposal for the distribution of the remaining assets of the estate. Once the proposed distribution is approved, the balance of the estate is disbursed to the beneficiaries according to the provisions in the will.

    What about Estates With No Will?

    In Florida, if someone dies without a will, then he or she is said to have died “intestate.” In such cases the deceased’s intestate property is distributed to the deceased’s heirs as set out in Florida Statutes.

    2. Plant City Estate Planning Lawyers

     

    Estate Planning Basics

    Planning for the disposition of your assets at death is vital to the preservation of wealth and financial stability of your loved ones who survive you. Estate planning is a complex area of the law. The attorneys at Byrd & Barnhill are prepared to help you begin the process of making an estate plan. The size and complexity of your current financial and family situation, as well as your intended beneficiaries and disposition of your estate, will affect whether a basic will is adequate for your estate planning needs. If your situation needs more specialized legal attention we will refer you to a legal specialist in estates and taxation or other specialized areas of the law to help you accomplish your estate planning goals. 

    Estate Planning Process

    During our initial consultation the estate planning attorneys at Byrd & Barnhill will need to gather some information in order to present you with your estate planning options. Some of the basic information that we will need before preparing a will or other estate planning documents includes the following:

    • The names, addresses, and dates of birth for client, spouse, family members, and others who will be beneficiaries;
    • The health status of client, spouse, children, and parents;
    • A list of the clients’ income, assets and liabilities, and the current fair market values of assets and payoff of liabilities;
    • Any liens, claims, litigation, judgments, or other potential liabilities affecting the estate;
    • Employment status, level of compensation, and the existence, terms, and designated beneficiaries of employee benefits including stock options, retirement plans, and IRAs;
    • Identity and status of children or other potential beneficiaries and any physical or mental impairment affecting the beneficiaries;
    • The clients’ citizenship and domicile;
    • List of insurance policies, including the face amount, cash values, loans, ownership and beneficiary; and
    • The current Will and trust agreements, if any.

     

    3. Plant City Will Drafting Lawyers

     

    Valid Wills

    Florida statutes govern the validity and execution of Wills; however, a will made in another state is valid in Florida if the will was valid in the other state at the time it was made.

    Basically, in Florida an individual who is at least 18 years old, or who has been emancipated, and is of sound mind can make a valid last will and testament. Being of sound mind” means that the person has the ability to understand in a general way the nature and extent of the property to be disposed of, and the his or her relation to those who would naturally claim a substantial benefit from the will, as well as a general understanding of the practical effect of the will as executed. Note, that every adult is presumed to be of sound mind until proven otherwise.

    Oral Wills and handwritten wills without proper witnessing are not valid in Florida.

     

    Proper Will Signing

    In order for a will to be valid in Florida it must be signed and witnessed in strict compliance with Florida law which provides as follows:

    “Every will must be in writing and executed as follows:

    (1)(a) Testator’s signature.

    1. The testator must sign the will at the end; or

    2. The testator’s name must be subscribed at the end of the will by some other person in the testator’s presence and by the testator’s direction.

    (b) Witnesses.–The testator’s:

    1. Signing, or

    2. Acknowledgment:

    a. That he or she has previously signed the will, or

    b. That another person has subscribed the testator’s name to it, must be in the presence of at least two attesting witnesses.

    c. Witnesses’ signatures.–The attesting witnesses must sign the will in the presence of the testator and in the presence of each other.

    (2) Any will, other than a holographic or nuncupative will, executed by a nonresident of Florida, either before or after this law takes effect, is valid as a will in this state if valid under the laws of the state or country where the will was executed. A will in the testator’s handwriting that has been executed in accordance with subsection (1) shall not be considered a holographic will.

    (3) Any will executed as a military testamentary instrument in accordance with 10 U.S.C. s. 1044d, Chapter 53, by a person who is eligible for military legal assistance is valid as a will in this state.

    (4) No particular form of words is necessary to the validity of a will if it is executed with the formalities required by law.

    (5) A codicil shall be executed with the same formalities as a will.”

     

    4. Avoid Probate – Plant City Trust Lawyers

    A revocable trust is a popular and very useful estate planning device. One obvious attribute of a trust is that it will avoid ‘probate’ that is required of a will. This is not to say that that a trust avoids all of the costs of probate, but that the trusts can make the process much smoother if well planned. A trust can be revocable or irrevocable. “Revocable” means that the person who sets up the trust has reserved the right to amend or revoke the trust during his or her lifetime. “Irrevocable” means that the grantor of the trust gives up the right to alter, amend or revoke the trust.

    A revocable living or “inter vivos” trust is one in which the grantor places all or certain of his or her assets directing that the trustee use the assets to provide for his or her needs during life. At death, the trust directs the distribution of the trust assets to certain named beneficiaries. The trust may also provide that the assets continue to be held in trust for the benefit of named beneficiaries for certain purposes and then distributed at a later time.

    Most often, the grantor retains complete control of the assets while alive by naming himself or herself as the trustee of the trust, and then naming a successor trustee to take over when the grantor becomes incapacitated or dies.

    In order for this estate planning method to work properly, the trust must be “funded” by the transfer of assets to the trustee, but there is no danger to the assets being in trust because the grantor has reserved control of the trust to amend or revoke the trust. The trust does not have to file a separate income tax return or maintain separate trust records prior to the death of the grantor. 

    5. Plant City Will Contest Lawyers

    Florida law provides that in cases contesting the validity of a will, the burden shall be upon the persons supporting the validity of the will to establish the will’s correct signing and witnessing. Thereafter, the persons opposing the will have the burden of establishing some grounds on which the probate of the will is opposed or revocation is sought. Thus, in a will contest there are many issues that come into play that affect the validity of the last will and testament.

    Signing and Witnesses

    In Florida, wills and trusts may be contested if the documents are not executed (signed and witnessed) as provided by law.

    Of Age and Sound Mind

    Florida Statute 732.501 provides that the maker of a will must be of sound mind and be at least 18 years of age. If not, a will may be contested.

     

    Mental Incapacity

    To make a valid will a person must be able to understand (1) the nature and extent of the person’s property, (2) who the persons are that would inherit if there wasn’t a will, and (3) the practical effect of the will.

    Just being advanced in age, feeble, lack of memory, or changing one’s mind are not enough to invalidate a will. Competency to make a will is presumed and the burden of proving that a person lacked capacity is on the person attacking the will.

    Of course, if a person has been declared incapacitated by a court in a guardianship proceeding, then the law also presumes the person cannot make a will, but this presumption can be overcome by evidence to the contrary. Obviously, in a will contest case there will be evidence from both sides regarding the deceased’s mental condition before and after the signing of the will.

    Undue Influence

    When the beneficiary under a will is in a special relationship of trust with the maker of the will and the beneficiary is active in assisting in the making of the will, a presumption of undue influence arises. This is a complex area of law.

    Suffice it to say, that a will can be set aside if a beneficiary took advantage of the maker of a will to substitute the beneficiary’s wishes for those of the maker of the will. If the beneficiary uses excess persuasion, coercion, or force that destroys or hampers the free agency and will power of the maker of a will, then the will can be set aside by the court.

    These are complicated cases that may involve the testimony of expert witnesses such as psychologists, attorneys who prepared and witnessed the will and others who had an opportunity to observe whether there was any undue influence upon the maker of the will.

    A Will Contest Must be Filed Promptly

    A proceeding to contest a will must be brought within definite time limits. Failing to bring a proceeding to call into question the validity of the will results in a loss of the right to contest the will.

    6. Plant City Guardianship Lawyers

    Persons who are mentally or physically incapacitated may need a guardian to handle their affairs. Also, children who have assets often need a guardian. The process of appointing a guardian begins with the filing of a petition to determine incapacity, followed by the application to be appointed guardian. Depending on the circumstances, the process may be contested or uncontested. 

     

    Florida Guardianship Law

    Guardianship matters are governed and controlled exclusively by Chapter 744 of the Statutes of Florida which contains the general law that governs all matters pertaining to guardians and wards, and the property of wards.

    There is a three-step procedure to appoint a guardian.

    • First, the process begins with the filing of a petition to determine incapacity of the alleged incapacitated party.
    • Secondly, a petition to appoint a guardian of the person or property, or both, must be filed.
    • Third, the person who seeks to be the guardian must file an application to be appointed by the Court.

    If the party is determined to be totally or partially incapacitated the Court then will then select a guardian from those persons who have filed applications to be appointed guardian, or appoint a professional guardian.

     

    Guardianship Terms

    A “guardian” is someone who acts as the agent for another person who is called the “ward.” The ward is also known as a “incapacitated person.”

    An “incapacitated party” is someone who the court finds to lack the capacity to manage at least some of his or her property or to meet at least some of his or her essential health and safety requirements. A “totally incapacitated person” is a person incapable of exercising most all of their rights with certain narrow exceptions.

    A court-appointed guardian can be appointed to handle matters relating to a ward’s person or property, or both. A guardian can be the guardian of the property or the person of the ward, or both. Or, two different guardians may be appointed, one for the person and one for the property.

    When the guardian is appointed to deal with less than all of the ward’s rights, he or she is known as a “limited guardian.” When the guardian has full power he or she is known as a “plenary guardian.”

    There are also persons who act as guardian as a profession. These persona are know as “professional guardians” and are paid out of the ward’s estate for services rendered.

    Another type of guardian is a “standby guardian” who is a person designated by the ward prior to the ward becoming incapacitated to assume the duties of guardianship upon the incapacity of the ward.

     Avoid Guardianship with a Power of Attorney

    Finally, the best way to avoid a costly guardianship proceeding is to give someone a power of attorney. 

    Get in touch

     

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