Probate & Guardianship Attorney
Probate and guardianship matters are two of the most common types of legal proceedings that individuals and families will face in Florida. Although such proceedings are common, the risks are high, as an improperly handled probate or guardianship proceeding can have long-lasting financial repercussions for those involved.
It is important to work with a probate & guardianship attorney whom you can trust and depend on to know the inner workings of the Florida courts system and represent your interests fairly. At Joyce A. Julian, P.A., we bring decades of probate and guardianship experience to bear in representing the interests of you and your family.
The Probate Process
When an individual dies in Florida, the deceased person’s assets will pass through a process called probate. Through a probate proceeding, the personal representative of the deceased’s estate then distributes the person’s assets as determined by the will, if there is one, and also takes care of remaining debts and expenses that are the responsibility of the estate.
Only a decedent’s probate estate requires probate administration. The probate estate is composed of assets owned by the decedent alone. It does not include jointly owned property, property in a living trust, or property, such as a life insurance policy or retirement account, with a beneficiary designation.
There are two types of probate in Florida: formal administration and summary administration. Formal administration is required when the decedent has been dead for fewer than two years and the probate estate is valued at over $75,000. A qualified fiduciary is appointed the personal representative, also known as the executor, of the estate. The personal representative gives creditors notice and the opportunity to present any claims they may have against the estate. The personal representative also gives an accounting to the beneficiaries of the decedent’s estate and, when all taxes have been paid and all creditors’ claims have been resolved, distributes the remaining assets to the beneficiaries. Formal probate is a lengthy process and can take months or even years.
Summary administration is used for estates of less than $75,000 or when the decedent has been dead for over two years. This is because under Florida law, creditors’ claims are only valid for two years after the decedent’s death. After that point, the estate is no longer liable for any claim against the decedent.
Does the Personal Executor or Beneficiaries Need to Hire an Attorney?
When a loved one passes away, their will must be proved in court before their assets are distributed, debt taken care of, and their last wishes can be carried out. This process is called probate. The probate court will name an executor to the will, usually a close family member or one of the main beneficiaries, to carry out probate tasks. This job can be difficult, and the executor (also called the personal representative) may require legal assistance if there are complications or disputes. Under Florida statute 733.707, there are strict guidelines for carrying out this job, particularly the order of payment to funeral costs, debtors, beneficiaries, etc. Family members or other beneficiaries may wish to speak to an attorney if the executor is not doing their job properly, if there are errors within the will, or if the will was subject to undue influence or other forms of corruption.
Not everyone needs an attorney during probate. However, it never hurts to speak with a probate & guardianship attorney before probate begins. An attorney becomes increasingly necessary when certain complications arise, such as the following:
- The will involves a business;
- There are large or complex assets at stake; and
- There are not enough assets to pay debtors.
Tempers are known to flare when a loved one dies and did not leave behind equal shares to their personal property to each beneficiary, when a beneficiary feels that they have been left out, or if a new romantic partner or “friend” was strangely written into the will just before the decedent passed away.
- Undue Influence – Undue influence occurs when the decedent was influenced to act in a way that was against their own free will. Undue influence is often relevant to older testators, particularly when they were suffering from dementia or another illness that rendered them susceptible to fraud.
- Testamentary Capacity – The testator did not have the legal capacity to create or make changes to their will. Older, sick, or very injured or partially incapacitated testators may not have the wherewithal to make these legal decisions.
- Personal Executor Issues – If the personal executor has made large mistakes or has worked to undermine the testator’s wishes in order to improve their own financial situation, working with a lawyer will be necessary.
A Former Judge and Forensic Accountant to Handle Your Probate Matters
If you have been appointed a personal representative, an attorney’s advice is invaluable. A dedicated attorney can ensure that you complete the probate process correctly so that no further legal issues arise for the beneficiaries after the decedent’s assets have been distributed.
At Joyce A. Julian, P.A., we can help you in all areas of probate, from overseeing the administration of a deceased person’s estate to representing individuals and families in probate-related litigation over such matters as the validity of a will, the intent of the testator, or the existence of assets.
Joyce Julian brings over 30 years of experience in Florida law in a variety of roles – magistrate, Broward County Circuit Court judge, private attorney, and forensic accountant – in helping you and your family with all of your probate-related matters. She is deeply familiar with the Florida court system from her 16 combined years as a magistrate and judge, and her background in forensic accounting will help you to make sure that probate proceedings are conducted in a fair and financially transparent manner. Contact our probate and guardianship attorneys for more information.
Helping Florida Families in Guardianship Matters
Whether because of ageing or disability, most families will encounter situations in which one family member needs to step forward to provide guidance and care to another family member. This can include the power to make decisions for their financial and medical well-being. This need for a legal guardian can come about as a result of illness or other incapacitation.
Guardianship is the Florida legal procedure by which one individual or institution comes to act as the guardian for the incapacitated individual, who then becomes the guardian’s ward. The relationship between a guardian and a ward does not have to be a blood relation, and any adult resident of Florida can act as a guardian.
The Guardianship Process
The first step in appointing a guardian for an ageing or disabled loved one is adjudging the person incapacitated. You may file a petition to determine incapacity, listing the areas in which the person has become incapacitated. The person will then be examined by a panel of experts, including a physician or psychiatrist. The panel must find that the person is incapacitated and that there is no alternative to guardianship. Adjudging a person incapacitated is a serious matter, as incapacity and guardianship mean removing some of an incapacitated person’s rights.
The ward may be adjudged to be either fully or partially incapacitated, and the incapacitation may relate to the person, to the property, or both. Guardianship of the property is applicable when the ward is no longer capable of managing his or her own financial affairs. The guardian has the duty to marshal the ward’s assets, and the assets are then put in the guardian’s name. The guardian has the responsibility to safeguard the assets and use them for the ward’s benefit and care.
Guardianship of the person is meant to protect a ward who is incapable of caring for him or herself. The guardian will make life decisions on the ward’s behalf. This may include decisions regarding the ward’s residence, medical care, travel, visitation, etc. Additionally, the guardian must file reports with the court to advise on the ward’s status.
A Florida guardian must be represented by an “attorney of record” who will provide legal guidance as the guardian carries out his or her duties on behalf of the ward. Joyce has decades of experience working with the guardianship process in Florida, and will work with you and your family as you embark on all your guardianship-related matters, including establishment of guardianship over a family member.
Please Do Not Hesitate to Contact a Probate Attorney Immediately
We encourage you to contact the experienced probate & guardianship attorneys at the law offices of Joyce A. Julian, P.A. for more information. No one wants to go to court unprepared, particularly in this time of loss and mourning. Our lawyers are here for you throughout this difficult time. Or, if you are interested in creating a will, our attorneys can help you with this important step. Surprisingly, only 44 percent of Americans have a will, according to Gallup. A will goes a long way in ensuring that your last wishes are carried out and your personal property ends up in the correct hands.