Something Spookier Than Halloween: Probate Court

Posted by on Oct 16, 2021 in Legal News | 0 comments

halloween Halloween is spooky season. It’s a time for all ghosts, ghouls, and goblins to come out and make themselves known. For a lot of people, this time of year is their favorite. And we can see why. The leaves are changing (if you live up North, that is), and Christmas is drawing closer. 

Speaking of all things scary and creepy, let’s talk about probate court. Though probate court might not spark the same fear as Stephen King’s It, it’s still no fun at all. Probate court deals with matters of estate administration. In this article, we’ll talk more about probate court’s functions and why you want to avoid it. 

What Does Probate Court Do? 

Probate court is presided over by a judge, of course, and that judge’s main mission is to ensure that someone’s creditors are paid off and their estate is wrapped up neatly. The basic role of the court is to deal with the debts and property of someone who has died. You can go through probate court even if you die with a last will and testament, as that will has to be authenticated. 

Disadvantages of Probate Court 

Public Process

Probate court is a public process. This means that family and friends have a forum to bring claims if they think they’re entitled to your property or that there is a problem with your legal documents after you die. As you can imagine, this increases the chance of conflict after your death. It might even escalate if relatives are battling it out, and your estate could wind up with some heft legal fees. Also, your personal information, down to the age of beneficiaries to how much your jewelry is worth, is out there for the public to see.

Court-Supervised

Probate court is supervised by a judge and controlled by a huge book of laws. Your executor is restricted and bound by these laws, and they’re not often able to act in a way that maximizes your estate’s value. Executors usually have to get the court’s permission for the majority of transactions they enact on behalf of your estate. 

No Advance Planning 

Anyone can go to probate, whether they have a will or not. There’s no advanced planning, and you don’t have to do anything before you die. However, that’s a double-edged sword, as the lack of advance planning means that you won’t have the ability to administer your estate in a way that shows your loved ones how much you care. The values expressed will be those of the court, not yours.

Intestacy

Dying intestate (without a will) is the scariest thing of all. Dying intestate has a lot of potential consequence, as that means that the court has total control. Your next of kin might not end up as your chosen heirs, and your loved ones will be bound by the law, not the provisions you make for them. 

Expensive

Probate can consume a lot of your estate. That number might be in the single-digits, but it still leaves less money for your heirs. Taxes, filing fees, and other costs can make a sizable dent in your estate that your family is not likely to appreciate. 

Time-Consuming

Lastly, probate court is time-consuming. Though it’s been reformed time and again, it’s still unpleasant. Your executor will have to complete tons of forms throughout the process, working on your estate tirelessly. 

How to Avoid Probate Court 

After hearing all these negatives, you are probably wondering how you can avoid probate court. This is where an estate attorney can step in, as they can help you perform legal maneuvers, such as writing a living trust, naming beneficiaries on your bank accounts and retirement, and holding property jointly, that will get you out of probate court. There are ways around it; you just have to seek help first.

As you can see, probate court isn’t something you want to tangle with. Avoiding probate court is something with which an estate planning attorney can help you, as they understand full-well probate court and its disadvantages. 

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October: Breast Cancer Awareness Month

Posted by on Oct 9, 2021 in Legal News |

breast cancerBreast Cancer Awareness Month happens every October, and it’s a time to reflect on taking care of you and your loved ones. One in eight women will be diagnosed with invasive breast cancer over their lifetime, so this is a problem that affects everyone. 

Early screenings, regular mammograms, and vigilance can help reduce the chances of breast cancer having severe or even fatal effects. To learn more about Breast Cancer Awareness Month and what it means for you and your family, visit www.breastcancer.org. 

As far as estate planning goes, breast cancer has an impact on how you should think about your estate plan, especially if the ailment runs in your family.

Illness and Estate Planning 

When you’re thinking about your estate plan, you should think about major life events and if you’re prepared for them. While some of those events, such as the birth of a new baby or a wedding, are cause for celebration, others, like illness and death, are not. In this article, we’ll discuss some important estate planning tools for illness. These tools will help you protect your assets and dignity in the event of the worst-case scenario.

HIPAA Releases

If you’ve ever been involved the medical field at all, either as a patient, worker, or both, you’ve probably heard the word “HIPAA.” HIPAA refers to the Health Insurance Portability & Accountability Act. It was drafted in 1996, and it imparted stringent requirements for the confidentiality of your healthcare information. 

A HIPAA release authorizes someone you designate to access your health information. This is essential if that person is going to be interacting with medical providers on your behalf. The authorization for this release will have to be, of course, voluntary and in writing. 

Living Will

A living will is a legal document that acts as a statement of your direct wishes as they pertain to your healthcare. Religious views are a common reason someone would choose a living will. A living will addresses specifications for your care—dos and don’ts—and what you do and do not consent to.

Health Care Proxy 

Another healthcare-related document that you often find in estate plans is a proxy. This medical power of attorney designates someone you trust to make medical decisions on your behalf, should you become too incapacitated to do so. Agents have the power to direct your medical care if need be, and they can also be named as your guardian, if a guardian proceeding were to ever occur. 

POLST 

POLST stands for a “Physician Order for Life-Sustaining Treatment.” This document, which your healthcare provider will help you complete, is part of  your medical records. It is accessible to your doctors whenever they need it, and it refers to end-of-life medical decisions. This means that it isn’t as broad as a living will or healthcare proxy. A POLST is useful to those who don’t have family to name or want more assurance that their end-of-life wishes will be honored. 

Power of Attorney (Financial)

Much like a medical power of attorney, a financial power of attorney is a person you designate to handle your financial, legal, and tax matters if you’re unable to do so. Every adult should have this basic document, but it becomes even more important for people who are living with an illness. 

A key question for those suffering from illness is how much control they should give up at the time versus later on, if things worsen. A financial power of attorney can be adjusted, if you feel that your condition merits less (or more) control to be handed over.

Though this list is not exhaustive, it is a way for you to see that, when it comes to illness, taking care of your loved ones requires vigilance and hard work. Contact an estate planning attorney to learn more about ways you can legally prepare in the event of an illness like breast cancer. 

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Fall is Here: Dealing with Change

Posted by on Sep 20, 2021 in Legal News |

fall autumnAccording to People Magazine, 33% of Americans say that fall is their favorite season. And, what’s not to love? Changing leaves, toasty fires, and pumpkin spice everything make fall a total treat. Fall also means change. Just like how the leaves go from green to red and orange, life brings with it a lot of changes as well. Some are positive, and some are negative, but all have to be dealt with in one way or another. 

In this article, we’ll discuss common major life changes and their impact on your estate plans. Estate planning provides all the tools you need to deal with these changes, but it’s still important to discuss how exactly they can impact your plans. 

Common Life Events 

Below are some common major life changes that almost everyone runs into. Though some are positive, many are not-so-sunny. While it might be hard to face these events, it’s important to do so, rather than be unprepared if they do happen.

Death 

Estate planning isn’t just death planning, so the death we’re talking about here doesn’t have to be yours. If it is, a last will and testament, a trust, and guardianship papers (if you have minor children) are all must-haves to ensure that your assets are divided up the way you want and your kids are cared for.

If someone in your family dies and they were listed in your estate plan, what happens? This is where it gets tricky. There are succession laws that dictate who gets the asset(s) (if anyone), but you’d be better off changing your plan to make the decision yourself. If your intended beneficiary dies, you need to revisit your estate plan, ASAP.

New Baby

On a happier note, a new baby can mean someone else to add as a beneficiary. If there is a new entrant to your family that you want to ensure is covered, be sure to do that sooner, rather than later. It’s all too easy to forget, but that forgetting can have consequences in the long-run. 

Divorce

As you can imagine, divorce has quite an impact on your estate plan. Your ex-spouse was likely listed as the beneficiary on your insurance, as well as a lot of other estate planning documents. Whether amicable or not-so-nice, you likely don’t want your former spouse coming to collect on your assets when you die. At some point during the divorce process, make sure you remove your ex from the paperwork. Contact an estate planning attorney to ensure you carry out the process thoroughly.

Home-Buying

When you’re creating your estate plan, your home like is going to be a huge feature in it, especially if you own it. If you purchase a new home, make sure your estate plan reflects your current address.  

Business

Estate planning for businesses is a huge topic, one that could have one-hundred articles all too itself and not be satisfied. When you start a business, you need to include that in your estate planning. A succession plan, tax considerations, and avoiding probate are three topics you should talk to your attorney about.

The Dangers of Waiting too Long 

The dangers of waiting too long to make an estate plan change mainly center around one proposition: life is unpredictable. You never know when something drastic will change, and you want to make sure your plan reflects your true wishes. 

There are many more changes that can come up in someone’s life, but these are the first major life events that come to mind. Make sure to check your estate plan every three to five years, but you should also make sure that, after an event like the ones listed above, you’re revisiting your plan. Call the attorneys at WFP to schedule an appointment. 

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Are You Ready for NFL Season? Take Cover.

Posted by on Sep 9, 2021 in Legal News |

For some people, NFL season is a cause for celebration. People love football; they have since the game became a national pastime decades ago. Football season is a regular staple of American life. Watching the game on Sundays is as much of a hobby as anything else is. 

NFL season

Whoever you support or root against is your business, but there’s something we can learn from NFL quarterbacks: how to be covered. Who is your offensive line? What protects you against a tackle?

In this article, we’ll discuss ways to cover yourself against a will challenge. The best offense is a good defense, and executing your will properly will provide you with almost all the protection you need.

What is a Last Will and Testament? 

Before we get into will challenges, we should talk about what exactly a will is. A last will and testament is a legally-binding document. It expresses your wishes on how you want your property (savings, home, car, possessions, etc.) distributed after you die. It also delineates who you want to manage the property and execute the will until the final distribution. 

The will can also perform other functions as well, such as appoint guardians for your minor children. It is important that a will communicates your wishes clearly, precisely, and accurately. As with any legal document, there are rules attached to how a will must be formed and executed.

What Are the Rules? 

Rules vary from state to state. In Florida, there are several requirements for the proper execution of a will. Bulleted below are must-haves for writing a will. 

  • Writing. Florida courts require that a will be written. There can be no nuncupative wills (oral declarations) or handwritten instructions without witness signatures (holographic wills). These non-written wills are not valid. 
  • Competence. A will must be made by someone who is competent. The Mad Hatter couldn’t write a will. Someone not of sound mind, or someone who is a non-emancipated minor under age eighteen, could not write a will. 
  • Terminology. As long as a will is executed according to the law, there aren’t any special phrases, language, or forms required to make the will valid. 
  • Signatures. This one shouldn’t come as a surprise. A will has to be signed by the testator, but the signature can be any letter, symbol, initials, or mark. As long as the person making the will intends that to be their signature, it counts. 
  • Witnesses. Witnesses have to sign the will in the presence of the person who made the will. They have to sign the will in the presence of each other. Anyone who is competent can be a witness, even if they’re a beneficiary in the will. 

In Florida, a will can be revoked or amended, and it can also be contested. Wills are not allowed to have provisions banning people from contesting the will. These provisions are unenforceable. However, attempts to contest the will’s validity cannot take place before the testator dies.

What is a Will Challenge? 

A will contest is an adversary proceeding brought during the probate of someone’s estate. The will contest challenges the will’s validity on some specific ground. There are a few grounds for contesting a will, but, first and foremost, only people with legal standing can contest a will. Anyone who is an “interested person” can file a will contest in Florida. “Interested persons” include creditors, beneficiaries, and heirs to the will.

There are three legal grounds on which someone can contest a will. First, they can claim there are irregularities in the execution of the will. Wills that don’t comply with the rules in the above section can be challenged on these grounds. 

Second, a contester can claim the person who made the will was not of sound mind. This means they didn’t understand or have the capacity to understand what they were doing and/or the practical effect of the will when they made it. Lack of capacity must be proven at the time the testator made the will. 

Third, someone can argue there was undue influence. The contester can say that they felt someone who substantially benefits from the at-issue will forced the testator to change the will and write it to benefit themselves. 

These three legal grounds are the basis for will challenges in Florida. Though not always successful, they are time-consuming, expensive, and cause no small amount of family division.

How to Avoid a Will Challenge? 

Unfortunately, there is no failsafe way to prevent people from contesting a will. However, if you follow all the rules to the letter and start early, the chances of those people succeeding are very low. Hiring an estate planning attorney to handle the will execution is a must.

The bottom line is that if you want something done right, hire a professional. Taking the DIY route via Legal Zoom or another website might be tempting, but it won’t pay off in the end. Avoid your will and wishes being questioned, and contact an estate planning attorney today.

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Labor Day: Protecting What You’ve Worked For

Posted by on Sep 6, 2021 in Legal News |

Labor Day is here! 2021 is far more than half over, and Labor Day is a chance to rest and kick back after you’ve worked so hard. Labor Day began in the nineteenth century, and it is dedicated to the contributions and achievements of workers in America. Traditionally, it is observed every first Monday in September. It wasn’t until 1984 that the federal government officially made it a holiday. 

labor day 2021

Now, every year, almost all of us have that first Monday in September off work. While you’re firing up the grill or planning a day trip, consider thinking about how you’re protecting everything you’ve worked for. Estate planning can help you keep your hard-earned assets, business, and more from falling into the wrong hands.

Estate Planning Tools 

There are a wide range of estate planning tools designed to help you protect your assets after you die. Whether you’re trying to safeguard your business or your home, listed below are some documents to help you do so.

For Your Business

There are estate plans for businesses that handle what happens to your company after you die. These succession plans deal with things like transfer of power or liquidation, as well as insurance and tax issues. 

For Your Assets

Wills and trusts are two of the most common estate planning tools for assets. Your last will and testament is a final expression of where you want your assets to go after you die (to certain family members, charity, creditors, etc.). A trust is a little bit different, as it can take place while you’re still alive. With a trust, you transfer title to your property for the benefit of a third party. You transfer to the title to a trustee, who grants it to the beneficiary upon your instruction. Trusts are often preferred to wills because they help people avoid probate court. 

For Your Kids 

Many people might not know this, but estate planning can help your kids, too. Part of estate planning involves guardianship. Choosing guardians for your kids in the event that something happens to you and/or your spouse is essential to their well-being. 

Threats to Your Estate 

So, what happens if you don’t have an estate plan, or if your estate plan is poorly executed? Probate court and will challenges are two common threats to your estate and asset division. 

Probate Court 

Probate court doesn’t always mean that something has gone wrong with your estate plan. Wills need to be authenticated in probate court for them to go into effect, and, if they’ve been properly executed, there shouldn’t be any issue. Where there is a problem is with intestacy. 

Dying intestate means that you have no estate plan. In that case, a probate court judge will divide up your assets after you die. The aim of the division will be, first and foremost, to pay off your creditors. This means that ideas and plans you might have had for your assets won’t be carried out, and your estate will be divvied up by the court. It is a hectic, time-consuming, and burdensome process for your family. 

Will Challenges 

Even if you have a will, there’s a chance it might not be executed properly. If you have a good attorney, that chance shrinks to next-to-nothing. However, in today’s era of Legal Zoom, things tend to go wrong. A will is filled with little technicalities, and, if you miss them, you run the risk of a relative challenging your will. Will challenges aren’t uncommon, and they can put a huge wrench in your estate plan.

When it comes to what you’ve worked for, no measure is too great for you to keep it safe. A comprehensive estate plan can keep your assets and business from falling into the wrong hands. If you have a specific idea for what you want to have happen to your possessions after you die, contact our attorneys at WFP to discuss setting up an estate plan.

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