Frequently Asked Questions – Probate & Guardianship

Frequently Asked Questions – Probate & Guardianship

Rachel Drude-Tomori, Esq., LL.M.

  1. What is Guardianship?

Guardianship is the court process that looks after people who cannot make their own personal, health care and financial decisions. Generally these people fall into 2 categories:

  • Minor Children (under age 18 in most states); and
  • Incapacitated Adults.

Guardianship proceedings can be expensive and time-consuming. Additionally, the court proceeding and associated documents are all a matter of public record. Many people choose to avoid guardianship in order to save money, spare their heirs a legal hassle, and keep their personal affairs private.

Having a Revocable Living Trust prepared by an experienced Estate Planning Attorney can help you to avoid guardianship proceedings should you become incapacitated. For more information about Revocable Living Trusts, please review our blog post entitled, “Frequently Asked Questions: Revocable Living Trusts.”

  1. What is Probate?

Probate Administration is a court process which takes, at minimum, about 6 months to a year, in order to collect the decedent’s assets, pay creditors, and distribute out any remaining assets to the decedent’s heirs. In Florida, there are two types of probate: (1) Summary Administration, and (2) Formal Administration (explained below). The person in charge of probating the decedent’s estate is called the “Personal Representative” who must have attorney representation (the attorney does most of the work).

Having a Revocable Living Trust prepared by an experienced Estate Planning Attorney can help you to avoid probate proceedings upon your death. For more information about Revocable Living Trusts, please review our blog post entitled, “Frequently Asked Questions: Revocable Living Trusts.”

  1. What is Formal Administration?

Formal administration is the traditional form of probate in Florida. A Personal Representative (sometimes called an “Executor” in other states) is only appointed in Formal Administration.

  1. What is Summary Administration?

Summary Administration is an abbreviated form of probate typically used when assets are valued at $75,000 or less (not including homestead value) or more than 2 years have passed since the date of death. A Personal Representative is not appointed in Summary Administration. It is sometimes referred to as “small estate administration.”

  1. Which assets are subject to probate?

Generally, assets titled in the decedent’s sole individual name and assets without a designated beneficiary are subject to probate. Examples of typical probate assets include:

  • Individual checking/savings accounts with no “pay on death” beneficiary
  • Individual brokerage accounts with no “transfer on death” beneficiary
  • Stocks and bonds
  • Real estate with no joint owner
  • Real estate that is owned as “tenants in common”
  • Retirement accounts with no “designated beneficiary” (or the designated beneficiary is deceased)
  • Insurance policies with no “designated beneficiary” (or the designated beneficiary is deceased)
  • Automobiles owned by individuals with no joint owner
  • Tangible personal property (e.g. household appliances, furnishings, artwork, jewelry, etc.)
  1. What is Joint Tenancy with Rights of Survivorship (“JTROS”)?

This is the most common form of asset ownership between spouses (when property is owned JTROS between spouses, it is called “Tenancy by the Entireties” or “TBE” in Florida). TBE has the advantage of avoiding probate at the death of the first spouse. However, the surviving spouse generally should not add the names of other relatives to their assets. Doing so may subject their assets to loss through the debts, bankruptcies, divorces and/or lawsuits of any additional joint tenants. Joint tenancy planning also may result in unnecessary death taxes on the estate of a married couple.

  1. What is a Will?

A Will is a document a person signs to provide for the orderly disposition of assets after death. Wills do not avoid probate. Wills have no legal authority until the will-maker dies and the original Will is delivered to the Probate Court. Still, everyone with minor children needs a Will. It is the only way to appoint the new “parent” of an orphaned child. Special testamentary trust provisions in a Will can provide for the management and distribution of assets for your heirs. Additionally, assets can be arranged and coordinated with provisions of the testamentary trusts to avoid death taxes.

  1. What is a Living Will?

Sometimes called an Advance Medical Directive, a Living Will allows you to state your wishes regarding what types of medical life support measures you prefer to have, or have withheld/withdrawn under certain conditions, in the event you cannot express your wishes yourself. Oftentimes a Living Will is executed along with a Designation of Health Care Surrogate, which gives someone legal authority to make your health care decisions when you are unable to do so yourself.

  1. What does Intestacy mean?

If you die without even a Will (intestate), the legislature of your state has already determined who will inherit your assets and when they will inherit them.

  1. What are Beneficiary Designations?

You may avoid probate on the transfer of some assets at your death through the use of beneficiary designations. Laws regarding what assets may be transferred without probate (non-probate transfer laws) vary from state to state. Some common examples include life insurance death benefits and retirement account benefits.

  1. What is a Durable Power of Attorney and when do I need one?

These allow you to appoint someone you know and trust to make your personal financial decisions even when you cannot. If you are incapacitated without these legal documents, then you and your family will be involved in a probate proceeding known as a Guardianship. This is the court proceeding where a judge determines who should make these decisions for you under the ongoing supervision of the court.

The laws governing Durable Powers of Attorney in Florida changed dramatically in 2011. If you have a pre-2011 Durable Power of Attorney, we strongly recommend that you consult with an experienced Estate Planning Attorney as you may require an updated Power of Attorney to ensure that your wishes are carried out by your nominated agent.

About the Author: Rachel Drude-Tomori, Esq., LL.M. is the lead Partner in charge of the Estate Planning & Probate Department at Battaglia, Ross, Dicus & McQuaid, P.A. Rachel currently serves as Chair of the Probate Section of the St. Petersburg Bar Association and Administrator of the Thomas E. Penick, Jr. Elder Law Inn of Court. Named a Super Lawyers Rising Star in Estate Planning for 2017 and 2018, Rachel assists business owners, corporate executives, and high net worth individuals and their families to protect their legacies from government and creditor interference through estate planning and wealth transfer techniques.