Upon a person’s death, family members or others interested in the estate usually locate the will, if there is one, and contact an attorney to represent the estate. The estate’s attorney will open a probate case to probate the decedent’s will or petitioning an appropriate person to assume responsibility for administering the estate if there is no will. The attorney will prepare the petition and other documents for filing with the probate court and will represent the personal representative throughout the proceeding and, after that, in the estate's administration.

The probate estate comprises personal property owned solely by the decedent wherever located, whether tangible of intangible, and real property owned by the decedent in Florida, except for the homestead property. Remember, however, that real property owned by the decedent in Florida is not the homestead property until the Court enters an order determining that the property is homestead.

Non-probate assets pass outside of the decedent’s probate estate and are not subject to court supervision of distribution. Non-probate property includes various types of property such as life insurance with a named beneficiary designated and that beneficiary is not the decedent’s estate, jointly owned property with rights of survivorship, and property held by spouses as tenancy by the entireties. Also, the non-probate property can comprise an inter-vivos trust that the decedent had the power to revoke at the time of his/her death. See, §689.075, Fla. Stat. However, the trust assets are used to satisfy the expenses of estate administration and the claims of creditors if the probate property has insufficient funds. See, §733.707(3), Fla. Stat.

When a person dies leaving a will, he or she is referred to as having died “testate.” If a person dies without leaving a will, he or she is referred to as having died “intestate.”

In the case of a person who dies leaving a valid executed will, a court proceeding is started, and the execution of the decedent’s will is proved. An appropriate person (who usually is named/designated in the will) is appointed by the Court to serve as the “personal representative” to administer the estate.

If the person dies intestate, a petition for administration of the decedent’s estate, if filed with the Circuit Court in the county, the decedent resided. Then the probate court appoints a personal representative to administer the estate. Preferences in the appointment of the personal representative are governed by §733.301(1)(b), Fla. Stat. §§732.101 – 732.111, Fla. Stat. sets forth who inherits during an intestate proceeding.

The personal representative is responsible for assuming control over all the property owned by the decedent for the purpose of administering the estate. See, §733.608, Fla. Stat.

A Trust Agreement is the contract between the Settlor (creator of the trust) and the Trustee(s) of the trust. The agreement creates an imaginary person (trust) to hold, and own assets contributed to it by the Settlor. Generally, the Trust Agreement also outlines the rights and use of the trust assets, who the beneficiary are of the trust, the purpose of the trust. Your first job as a trustee is to review and understand the trust agreement. A “living” trust is made to take effect and be used during the lifetime of the Settlor. Generally, the trust will be “revocable” which means the Settlor may change and/or cancel the trust through amendment. Sometimes, a trust may be “irrevocable” so that it cannot be changed or canceled except in exceptional circumstances.

There are many reasons to create a trust. Not all the reasons listed below may be the cause for your Settlor to create the trust you administer.

 The main reason for any living trust is to name individuals, in advance of need, so that someone can step in and handle financial affairs if the beneficiary cannot do so themself. With a properly funded trust in place and successor trustees named, if the Settlor becomes incompetent, there would be no need for a court-appointed guardian. In the end, someday nearly every person will need that support mechanism, and the trust provides it with built-in security measures to protect the initial beneficiary, which in most case is the Settlor of the trust. A Trustee should not act on behalf of the trust if the Settlor is capable of acting themself unless the Settlor tells the Trustee to do so.

Most estate planning attorneys use a trust to avoid probate. The Trustee has immediate access to the assets after the death of the initial beneficiary and can therefore hold, invest, manage, apply, or distribute assets as set forth in the Trust Agreement. Normally, a probate proceeding is unnecessary as to assets held in trust ownership, except in relatively rare circumstances. Saving probate saves the estate and the heirs money, time, red-tape, and aggravation.

If you require assistance or help, we are here to help guide you through the probate process. To learn more and to see if our Elder Law services are right for you, set an initial consultation. When calling our office at 1-855-ELDER-FIRM, our staff will explain what to expect and bring to your meeting.