Frequently Asked Questions of Florida Probate Attorney Mark B. MacLean

What is Probate?

Probate is a process whereby the Court supervises the transfer of assets from the deceased person to his or her heirs and requires the filing of particularized and complicated legal forms. Jacksonville, Florida probate Attorney Mark B. MacLean has particular expertise and experience in the area of probate and estate administration. He can promptly respond to your questions and inquiries and assist you with the probate and estate administration process in a professional, courteous and timely manner. If an Estate Tax Return (Form M-706) is required, Attorney MacLean has the ability to promptly take care of this important tax requirement and assist you with the following types of probate matters:

• Petition for probate of estate
• Conservatorships
• M-706 estate tax preparation
• Will and trust contests
• Estate and trust administrations

How is a Will probated?

The following is a simplified outline of the general probate process:

• The original Will is deposited with the Court.
• The Executor named in the Will or Administrator is appointed. Executors and Administrators are commonly referred to as Personal Representatives.
• The Personal Representative files a Petition for Probate of the Estate.
• For approximately four months from date of Petition for Probate, creditors of the Estate can file claims against the Estate. This would include any prior creditors or judgment holders, debts resulting from last illness, funeral expenses, taxing authorities, etc.
• During this time period, the Personal Representative has to identify and collect assets of the Estate. To do this, the Personal Representative finds all bank and security accounts, debts owed to the Decedent, property owned by the Decedent, etc. The Personal Representative also has to maintain the assets in good condition. This consists of maintaining insurance coverage, collecting rent, protecting assets from theft or damage, etc. The Personal Representative may also liquidate assets such as cars, real estate, etc. during this time.
• When the four-month claims period has expired, and when all assets have been collected, real property sold, and assuming no problems have presented themselves such as the Will being contested, the Personal Representative then files a petition with the probate court to allow a distribution of all remaining assets to the beneficiaries/heirs, and files a detailed accounting with the Court setting forth all monies received, monies disbursed, how assets were invested, and the proposed plan for distribution.
• If the Court approves the plan, the Personal Representative then divides the assets as instructed in the Will, or as required by statute if no Will exists.

The minimum amount of time that the probate process can be completed is approximately six months, but it normally takes longer. Reasons for delays can include Will contests, property cannot be sold, claimants not being notified in the original four-month claim period, etc.

Are there different types of Wills?

There are many types of Wills:

• A Double Will is one in which two people join together, leaving their individually owned property and estate(s) to the other. This type of Will is also called a Counter Will, Joint and Mutual Will, or Reciprocal Will.
• Holographic Wills are entirely handwritten, dated and signed by the testator.
• A Living Will, Medical Directive or Health Care Directive is one that authorizes the continuance or cessation of life-sustaining medical treatments from an individual who is incapable of making that decision due to debilitating circumstances.

Jacksonville, Florida estate planning lawyer Mark B. MacLean can help you or a loved one decide which type of Will is most suitable.

Who should make a Will?

Every adult person should consider making a Will. Each year a large number of people die without Wills, leaving major decisions in the hands of the state of Florida. Wills are especially important for parents of children who are under eighteen, as arrangements for the children's financial support and/or appointed guardian can be determined. Without a Will, any property distributed to minor children could be subject to an expensive court-appointed guardianship, which could greatly affect inheritance. And in some states, if you were married and childless, your parents could split your property with your spouse if not alternatively predetermined in a Will.

How does a Trust work?

Trusts are the process by which the grantor transfers legal ownership to a person or institution (called the trustee) to manage the property for the benefit of another person (called the beneficiary). Trusts create a fiduciary relationship between the trustee and the beneficiary. The trustee must act solely in the best interests of the beneficiary when dealing with the trust property. If a trustee does not live up to this duty, the trustee is legally accountable to the beneficiary for any damage to his or her interests. The grantor may act as the trustee himself or herself, and retain ownership instead of transferring the property. A grantor may also name themselves as one of the beneficiaries of the trust.

What about Health Care Provisions and Powers of Attorney?

Florida extends the delegation of decision-making power to cover health care issues including the withholding or withdrawal of life support treatment by means of a Power of Attorney for health care. Through this Power of Attorney, you have the right to designate an agent who can make treatment decisions for you in instances where no communication is possible because of your medical condition.

In addition to health care considerations, it is also important to have a Power of Attorney available to handle various legal and financial matters in the event you become mentally incompetent. For example, a surviving spouse can be given a Power of Attorney to handle her incompetent spouse's salary checks, social security benefits and to make other legal and financial decisions.

What are Estate (Death) Taxes?

Estate tax may apply to your taxable estate at your death. Your taxable estate is your gross estate less allowable deductions. Your gross estate includes the value of all property in which you had an interest at the time of death. Your gross estate also will include the following.

• Life insurance proceeds payable to your estate or, if you owned the policy, to your heirs
• The value of certain annuities payable to your estate or your heirs
• The value of certain property you transferred within 3 years before your death
• Trusts or other interests established by you or others in which you have certain powers

The allowable deductions used in determining your taxable estate include:

• Funeral expenses paid out of your estate
• Debts you owed at the time of death
• The marital deduction; generally, the value of the property that passes from your estate to your surviving spouse

If you or someone you know in Jacksonville, Florida, or within the surrounding cities and counties of Northern Florida, needs the assistance or legal counsel of an experienced probate lawyer, contact Attorney Mark B. MacLean today at 866-665-8310, or complete the contact form provided on this site to schedule your free consultation.