Frequently Asked Questions

Miami Probate Attorney

People may not know anything about probate until they have lost a loved one. Depending on the decedent and their estate, the process can be fairly simple, or extremely complicated. Below are a few of the questions that clients frequently ask me in regards to probate. If you have any other questions, please do not hesitate to contact the Miami probate lawyer at my firm.

What is probate?

Probate is the legal process of administering and dividing your estate - this includes proving that your will is valid, identifying your property, paying off any debts and taxes, and dividing your remaining assets. Your estate may be divided per your will, or by the Florida probate court if a will is invalid or nonexistent.

Does everyone have to go through probate?

Unless an estate is worth less than $75,000, formal administration, or regular probate, is necessary. There are ways to avoid the probate process, such as setting up revocable trusts or gifting a certain amount of money or assets to beneficiaries while you are still alive.

Do wills have limitations?

Yes, wills do have limitations. This is why it is important to create an entire estate plan, and keep every document up-to-date. Things such as financial accounts and insurance policies have more power than a will. If your ex-spouse is named to receive your assets in a financial account or insurance policy after you die, they will receive said money, despite what your will states.

What is a personal representative, and what are they responsible for?

A personal representative is a person you choose and declare in your will to administer your estate. They are responsible for the entire estate administration process, which includes filing tax returns, paying off debts, and distributing your property according to your will. It is a huge responsibility, and the person you choose as an executor must understand what is involved in the estate administration process.

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 in a trust, along with funding your child or grandchildren's education.

What is the difference between a living will and a power of attorney?

A living will is a legal document that states what type of medical care you wish or do not wish to receive should you become unable to voice your opinions. A power of attorney is a document that you write that appoints someone to make medical decisions on your behalf.

What is an estate guardian and a guardian of a person?

An estate guardian is a person you or the court elects to manage your child or incapacitated loved one's property until the child has reached the legal age, or until otherwise stated/ordered. A guardian of a person is someone you or the court chose to raise or care for your relatives. They have the same legal and ethical responsibilities as a parent, and they must keep the child's best interest at heart at all times.

Can they be the same person?

Yes, the estate guardian and guardian of a person may be the same person. You can elect a person as a guardian in your will, but if you do not have a will, or a guardian is not named in your will, the state will choose an organization or person to manage and care for your children or incapacitated loved one.