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Issues in Probate

Where will your remains rest?

Some of the usual conflicts that arise during probate of an estate involve:

  1. Who will be the personal representative,
  2. Management of the estate assets,
  3. Assets included in the estate,
  4. How the assets will be distributed.

Yet, it is not unusual for there to be conflict over the manner and place for putting the body to rest. Sometimes a judge is asked to decide which party receives the cremains. Sometimes the cremains are used as a bargaining chip by a relative to get a larger share of the estate.

Florida courts have held that the decedent's last discernible wishes for disposition should be honored. If the decedent's wishes are not known, then Florida Statute 497.005 (39) provides a list of priority that funeral directors may rely upon. This list provides:

The surviving spouse, unless the spouse has been arrested for committing against the deceased an act of domestic violence as defined in s. 741.28 that resulted in or contributed to the death of the deceased;

A son or daughter who is 18 years of age or older;

A parent;

A brother or sister who is 18 years of age or older;

A grandchild who is 18 years or older;

A grandparent; or

Any person in the next degree of kinship.

In addition, the term may include, if no family member exists or is available, the guardian of the dead person at the time of death; the personal representative of the deceased; the attorney in fact of the dead person at the time of death; the health surrogate of the dead person at the time of death; a public health officer, etc.

If you have specific ideas, then it is important for you to tell your family and friends what they are. You can give directions in your will, in letters, or by making arrangements in advance.

Sometime ago, I visited a cemetery in Savannah and was moved by the stories reflected on the headstones. "Killed in a Duel", "Died in Childbirth", "Gone Fishing", and headstones for many children. What would you want on your headstone?

Besides burial, interment in a mausoleum, and cremation, you can be compressed into a diamond, or sent into space.

If you just can't or don't want to make a decision, you can designate the person to whom you delegate the choice in your last will and testament. To find out more information regarding the intricacies of your estate plan, contact Miami probate attorney Susan E. Durre today!

Categories: Probate

Frequently Asked Questions

Why should I create a trust? You should create a trust for multiple reasons. Trusts can help you avoid certain types of taxes. If you create an irrevocable life insurance trust, for example, protects your death benefit proceeds from estate taxes. You may also be able to avoid the probate process by keeping certain property out of your estate. You can create certain conditions and terms for trusts, in order to protect your estate, as well. You can also leave money for charities and institutions in a trust, along with fund your child or grandchildren's education.
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Susan E. Durre - Miami Probate Lawyer
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