A special greeting of Thanksgiving time to express to you our sincere appreciation for your confidence and loyalty. We are deeply thankful and extend to you our best wishes for a happy and healthy Thanksgiving Day. – From all of us at BaskinFleece
Make the Tough Decisions so your Loved Ones don’t have to. It’s not a fun subject to think about, nor is it a fun topic to discuss with your family, but preparation for end-of-life decisions should be part of every individual’s estate plan.
In Florida, these end-of-life preparations are made through a Living Will. There are various legal requirements when executing a Living Will, so it is important that you consult an attorney prior to doing so to ensure that your Living Will will be valid.
Living Wills are often confused with Living Trusts, which are used as an estate planning mechanism to allow your assets to pass outside of probate. A Living Will, rather, is an estate planning document that allows an individual to make known their wishes as to whether they would prefer to utilize or decline the use of life prolonging medical procedures.
These medical scenarios usually present themselves in situations where a person is suffering from the latter stages of a terminal illness, has an end-stage condition, or find themselves in a persistent vegetative state. The use of medical treatment only serves to artificially prolong the process of dying. In these circumstances, where you are unable to speak for yourself, a Living Will acts as a mechanism to make your desires known to your family members and/or the medical personnel.
Common misconceptions are the fear that a Living Will might supersede your current preferences at the time of treatment, or that declining “life prolonging treatment” on a Living Will might jeopardize your opportunity to recover from an illness or injury that you might otherwise be able to survive.
These fears are misplaced. First, a Living Will only becomes effective when you are incapacitated, meaning that if you are awake and coherent, your verbal preferences will outweigh whatever designations you made within the Living Will. Second, Living Wills are only utilized in medical situations in which it the patient is suffering from a terminal condition, end-stage condition, or is in a persistent vegetative state.
An individual should not fear that the Living Will would take effect in non-life threatening scenarios nor situations in which medical personnel might be able to resuscitate the patient to normal health. Moreover, the patient’s supervising medical doctor, and at least one other consulting physician, must separately examine the patient to certify that the patient is suffering from a terminal illness, or will remain permanently unconscious, prior to a Living Will becoming effective.
As we discussed, end-of-life preparation is not a fun topic to discuss nor prepare for, but what is exponentially worse is being put in the situation where you have to decide whether your parent, spouse or other loved one, should be resuscitated or not. Even though a loved one’s long-term medical outlook is hopeless, it can be extremely difficult for family members to “let go” when there has not been any instructions from the loved one. This often leads to long-term emotional strain and an ever-increasing financial burden.
Regardless of your position on life-prolonging treatment, make your preferences known pursuant a Living Will. You would not want to be put in the position of having to make such an important decision for another, so get yourself prepared by executing a Living Will, ensuring that the people you care about most will not have the burden of having to make that decision for you.
Probate is the court-supervised process for collecting the assets of a deceased person, ensuring payment of the decedent’s debts, and distributing the remaining assets of the decedent to his or her beneficiaries. Florida law provides for an abbreviated probate, if an estate meets the criteria. An abbreviated probate is called a “Summary Probate Administration.”
In Florida, a Summary Probate Administration is available for a decedent’s estate if the value of the estate subject to probate in Florida does not exceed $75,000.00 and provisions are made for payment of the creditors. The value of the estate does not include property exempt from the claims of creditors, such as homestead real property. Florida also allows a Summary Probate Administration if a decedent has been dead for more than two years and there has been no prior probate administration. The value of the estate does not matter in this case.
A Summary Probate Administration starts by filing a petition with the probate court that identifies facts about the estate, such as: the nature and value of the assets, the decedent’s debts, and a plan of distribution of the assets. Next, the court will review the petition, ensure all interested parties have an opportunity to review and respond to the petition, and review the provisions for payment of claims of creditors. After the court is satisfied that the estate is eligible for a Summary Probate Administration, that all creditors have been properly notified or satisfied, and that the plan of distribution correctly identifies the beneficiaries, then the court will enter an order distributing the assets to the beneficiaries.
Baskin Fleece handles all aspects of probate administration. For more information, call (727) 572-4545 or visit www.BaskinFleece.com.
Make sure you file a Caveat to protect yourself. Deciding whether or not to contest a loved one’s will is understandably a very difficult decision to make. Wills are most commonly contested either due to a testator’s (person executing the will) mental incapacity or because a third-party exerted undue influence over the testator near the time the will was executed.
Often potential clients suspect foul play when their parent or loved one changes their estate planning late in life, but they decide to hold off researching their options until they have had sufficient time to mourn their loss. The hard reality, however, is that any delay could put a client at a disadvantage should they ever pursue legal action.
The beneficiaries under a questionable will often begin advancing their claims immediately after the testator passes away. If this unscrupulous individual is also nominated as the personal representative under the new will, which is usually the case, then that individual has the ability to open a probate estate on behalf of the testator.
The method used to open a probate estate is to file a document called a Petition for Administration. If the Court has no reason to suspect that a will contest is being considered, then the Court will appoint a personal representative and that individual would then be empowered to act on behalf of the testator’s estate. One of the main concerns in allowing this appointment to happen is that once an individual is named personal representative of an estate, they have the ability to use estate funds to defend any legal action brought against the estate. This can put a potential will contestant at a serious financial disadvantage in a will contest.
So what can you do to protect yourself? The Florida Probate Code allows any interested party, who is “apprehensive” about a testator’s estate, to file a Caveat with the Court. A Caveat basically puts the Court on notice that there are questions surrounding a testator’s Last Will and Testament. As long as the Caveator is not merely a creditor of the estate, a Caveat can be filed either before or after the testator’s death.
Once a Caveat is filed, the Court will not appoint a personal representative of an estate until the Caveator has been given formal notice of the proceedings. Upon receiving formal notice, the Caveator has twenty (20) days to file an objection or competing petition. By filing the Caveat, a Caveator ensures that their potential adversary will not have access to estate funds for purposes of litigation. As discussed above, precluding the opposing party from using estate funds ensures that the competing parties will begin a will contest on equal footing. .
It is also important to keep in mind that there are certain formal requirements when executing a Caveat, so please consult a probate attorney to ensure your Caveat is valid and effectual under the law.
Baskin Fleece handles all aspects of probate administration and probate litigation. To schedule an appointment with a BaskinFleece attorney, call (727) 572-4545. For more information about BaskinFleece, visit http://www.BaskinFleece.com.