Frequently Asked Questions

We are constantly updating our FAQ section. If you do not see what you are looking for, please send us an email and we will be glad to assist you in answering your question.

QWhat is probate?

AProbate is a legal process whereby a deceased person's assets are marshaled, his/her debts (whether to creditors or IRS) are paid, and remaining funds are transferred to beneficiaries either by will or by statute if the deceased person did not execute a will during his/her lifetime. The probate process can be intense and time consuming, with most cases being administered within 12-24 months. Additionally, the probate Court is in charge of persons with disabilities, minors, and adults who cannot make personal decisions relating to their affairs (whether related to their finances or their health).

QWhat is a will?

AA will is a document that a person drafts (in front of two witnesses and a notary) in order distribute or dispose of their belongings upon his/her death. In a will, a person can set forth the terms under which his/her heirs inherit funds, gifts to charities, or even gifts to pets. If a person chooses not to sign a will prior to their death, the State of Florida (and every other state in the nation) has rules relating to the distribution of such assets in the absence of a will. This is called the intestacy statute and it sets forth the priority of closest living heirs legal heirs who inherit a person's asset (if he/she has not executed a will).

QWhat is a guardianship?

AA guardianship is a legal process whereby a Court appoints a guardian to assume control over a minor's assets or an incapacitated adult's person and property either for a limited time period or permanently (until restoration of rights or death). This can happen when a minor's parent(s) has(have) passed or when an adult becomes incapacitated. A mental health determination is made in the case of an adult to determine what rights, if any, he/she can maintain and what rights should be exercised by a guardian. If the incapacitated adult has valid executed advance directives, the Court will look to those documents and determine (at an evidentiary hearing) what rights a guardian can exercise and what rights a surrogate appointed under the advance directives can exercise.

AVVO Questions:

Q Can an irrevocable trust and regular trust be considered two separate entities?

A A trust document, whether revocable or irrevocable, must be read carefully by an attorney to determine the plan of action. The two documents you mention are two separate documents although a person can draft an irrevocable trust within a revocable trust and vice versa. The documents do not have to have the same terms. The grantor/creator can specify one set of rules for each trust. Please consult an attorney to help you read through the documents and their ramifications on your situation.

Q My father created a revocable living trust. there are 3 kids, and I am the youngest. My question is my father says everything will be split equally amongst the 3 of us children (my mother is passed away). My father has 510,000 and is giving each of us 170,000 each. The issue is he has placed my older brother as the trustee since my father is 85 and getting elderly. Can my brother who is the trustee change anything after my father dies? As trustee does he have the control after my fathers death to say change the 170,000 we each get to a lesser amount? and then make it so he gets more? My other brother and myself are not sure we trust this older brother who is trustee/grantor to the revocable trust fund.

ABy their very nature, a revocable trust because irrevocable upon the grantor's (the person who created the document) death. However, the terms of the trust will dictate whether the terms of the trust can be changed and if so, by whom. Please consult an attorney to guide you.

Q What to expect at Determination of Heirs Legaltees of Estate. I haven't had contact with my fathers widow since his death. As his only child, what rights do I have? Correction... My father and his widow have no children. What rights do my brother and I have?

AYou should consult with an attorney who specializes in probate and estate administration. As the previous poster commented, if your father had a will, that may determine the answer to your question. Otherwise, there are state specific intestacy statutes which state how assets should be distributed in the absence of a will where there are children of a prior relationship/marriage.