Estate planning is the process of writing down instructions and nominating trusted individuals who will take over for you if something happens. 

A comprehensive estate will plan for two main life events: (1) you are alive but unable to make your own business, legal, financial, or health care decisions; and (2) you pass away.
For an overview of estate planning documents, review these articles: 

• Estate Planning Part 1- Planning for Incapacitation
• Estate Planning Part 2- Planning For Death

Planning and preparation now will save your loved one’s time, money, and emotional strife in the event of your incapacitation or death, both of which are already draining and emotional situations. 

If you do not authorize individuals to act on your behalf in the event of incapacitation, your loved ones must petition the court to obtain guardianship over you. Without a Will or Trust in place, your beneficiaries may have to go through the probate process, which will cost additional time, money, and resources.

Estate planning is essential for all Florida residents, regardless of age, net wealth, or occupation. A comprehensive plan will not only benefit you as an individual but ensure your loved ones will not have the financial and legal burden to obtain the same authority you could have easily granted with an estate plan. 

Our attorneys can help you find the best plan to suit your needs. Give us a call at 813-498-2757 for a free consultation.

Yes. Florida Statute §736.0706 states the settlor, a co-Trustee, or a beneficiary may request the Court to remove a trustee, or the Court may remove a trustee on the Court’s initiative. The Court may remove a trustee if: 

1. The trustee has committed a serious breach of trust;
2. The lack of cooperation among co-Trusteesco-trustees substantially impairs the administration of the trust;
3. Due to the unfitness, unwillingness, or persistent failure of the Trustee to administer the trust effectively, the Court determines that the removal of the Trustee best serves the interests of the beneficiaries; 
4. There has been a substantial change of circumstances, or removal is requested by all of the qualified beneficiaries, the Court finds that removal of the Trustee best serves the interests of all of the beneficiaries and is not inconsistent with a material purpose of the trust, and a suitable co-Trustee or successor Trustee is available.

• Inventory your assets and estimate their value.
  • Homes, land, or other real estate.
  • Vehicles, including cars, motorcycles, or boats.
  • Collectibles such as coins, art, antiques, or trading cards.
  • Personal possessions.
  • Checking and savings accounts and certificates of deposit
  • Stocks, bonds, and mutual funds
  • Life insurance policies.
  • Retirement plans such as workplace 401(k) plans and individual retirement accounts.
  • Health savings accounts
  • Business ownership
  • Digital assets
• Anticipate family conflicts.
• Plan for federal and/or state estate taxes.
• Prepare for Long-term care.
• Speak to your Personal Representative or Healthcare Surrogate before nominating them.
  • One of the most important decisions you will make for your estate plan is who you choose as the administrator or personal representative of your will and who will speak on your behalf in the event of incapacitation. We always advise speaking with this individual before nominating them.
• Set up guardianship for minor children and dependents.
  • Document your wishes for your children’s continued care 
• Keep your beneficiaries up to date.
• Plan to reassess.
  • Life changes. So should your estate plan.

For more tips, a breakdown of documents, and questions to answer before you begin drafting your plan, review these articles: 

• Estate Planning Part 1- Planning for Incapacitation 
• Estate Planning Part 2- Planning For Death 

• If you do not properly authorize someone to act on your behalf in the event of incapacitation, your loved ones must petition the court to obtain guardianship over you. A guardianship is the legal proceeding in Florida in which a guardian is appointed to exercise the legal rights of an incapacitated person.

• A Guardian is a court-appointment position, typically an individual who advocates on behalf of their ward (a ward is the person who is incapacitated) and is responsible for whatever decisions cannot be made by the ward.

  • Types of Guardianship:
  
  
  • Guardianship of the property – gives the Guardian the authority to make financial decisions and manage the ward’s property and money, as directed by the Court. The Court requires annual filings as a check and balance to ensure that the ward’s assets are not manipulated and the ward’s interests are always protected. 
  
  
  • Alternatives – Guardianship may not always be appropriate, and there are other alternatives available to ensure that an individual is adequately protected and cared for, including:
    1. Supported Decision-Making 
    2. Representative Payee
    3. Health Care Proxy
    4. Power of Attorney
  
  For more information, read our article, Estate Planning Part 1- Planning for IncapacitationGuardian Advocacy- this is a special type of guardianship that is reserved for Wards who have an intellectual disability. Under Florida Statute §393.063(12), a person with a developmental disability must have an Intellectual Disability (IQ less than 70), Cerebral Palsy, Autism, Spina Bifida, Downs Syndrome, Phelan-McDermid syndrome, or Prader-Willi syndrome that manifested before the age of 18; and that constitutes a substantial handicap that can reasonably be expected to continue indefinitely.
• Guardianship of the person – gives the Guardian the authority to continue to help the individual with everyday decisions, including health care, social, and educational decisions. The Guardian is responsible for ensuring the ward’s best interests are being met and that the ward receives the daily care and necessities required.

• A special needs trust in Florida describes any trust that includes provisions designed to protect a physically or mentally disabled trust beneficiary’s eligibility for need-based government benefits such as Medicaid or Supplemental Security Income (SSI). 

  
  Why is a Special Needs Trust important?
  
  This kind of trust is important for a number of reasons. For one, they are designed to prevent trust assets from being counted for purposes of government benefit eligibility. The trust agreement typically allows the Trustee to distribute income or assets to a beneficiary only if the distribution does not disqualify or diminish a beneficiary’s government benefit, such as Medicaid.

• 1. Probate is the process of collecting assets left in a decedent’s sole name, paying off any of the decedent’s debts, and distributing the remaining property to the decedent’s heirs or beneficiaries. 

   

  • Tips for managing Probate

   

  1. Locate the Will, if there is one.
  2. Determine if there is a named Personal Representative; if not, the closest next of kin.
  3. Contact medical professionals and any other businesses that the decedent saw on a regular basis.
  4. Secure and protect all property.
  5. Identify all bank accounts.
  6. Obtain 5-10 certified copies of the decedent’s death certificate.

  
  For more information, check out our Florida Probate Rules and Processes article.

Typically, probate begins shortly after a decedent’s death by filing the decedent’s last will and testament (or “Will”) with the circuit court clerk in the county where the decedent resided. Probate may also be required in another state where the decedent owned real estate. 

In instances with no Will, the Court will determine the rightful heirs and who should serve as Personal Representative based on state law. The Personal Representative is responsible for determining which assets are “probate assets” and “non-probate assets.” “Probate assets” are assets left in the decedent’s sole name that must go through the probate process to remove the decedent’s name; “non-probate assets” are assets there were owned by the decedent; however, the asset is now owned by someone else so it does not require probate. “Non-probate assets” typically transfer automatically to someone else because the decedent owned the asset jointly with someone else or there was a beneficiary named on the asset. 

For more information, check out our Florida Probate Rules and Processes article.

Florida Probate Administration is a court process that transfers assets a deceased person owns to their living heirs or beneficiaries listed in their will. 

1. What if the descendent has debt?
   
   If someone dies with outstanding debt owed, there is a hierarchy of how those debts will be paid using the property and money passing through the probate. First, the decedent’s funeral bill and last medical debts will be paid. Next, any costs for administering the estate are paid, including taxes, Medicaid liens, attorney fees, accountant fees, personal representative fees, and any storage fees for home furnishings. Then any secured, followed by unsecured creditors, are paid. The decedent’s heirs and beneficiaries are not responsible for paying the decedent’s remaining debt if the estate becomes insolvent. 

The Personal Representative must notify known creditors by mail and publish the deadline for filing creditor claims against the estate in the newspaper. 

A formal probate administration typically takes six (6) months to a year, depending on the circumstances. Issues that may result in a longer timeline include ascertaining missing assets, disputes between beneficiaries, payment of income and inheritance taxes, and legitimizing credit claims.

In Florida, a Last Will and Testament (Will) is a written document that directs who will receive property and assets upon a person’s death. It also allows the creator to choose the guardian of a minor child should both parents die while the child is under age of 18.

Read our article, Your Guide to a Comprehensive Estate Plan Part 2, for more information.

Who should have one, and why?

A valid Will is essential for all Florida residents, regardless of age and wealth. The main benefit of creating a Will is that it allows individuals to leave property and possessions to the people of their choice. 

An individual who dies without a Will (or another plan, such as a living trust) is considered to have died “intestate,” which means that the State of Florida dictates how the property will be distributed. See Florida Statutes Chapter 732 for more information.

Our attorneys can help you find the best estate plan to suit your needs. Give us a call at 813-498-2757 for a free consultation. 

Our practice of family law & domestic relations includes: 

1. Prenuptial Agreement
2. Postnuptial Agreements
3. Paternity 
4. Dissolution of Marriage
5. Child Support
6. Modifications of Agreements
7. Contempt of Court 
8. Step-Parent Adoptions
9. Termination of Parental Rights 
10. Protective Injections, including Domestic Violence and Stalking
11. Cohabitation Agreements 

Dissolution of Marriage, less formally known as divorce, is the legal proceeding for terminating a marriage.

Divorces can be simplified, uncontested, or contested.

1. Simplified Divorce – A short, condensed divorce that meets specific requirements: 
2. 1. 1. Both spouses agree the marriage cannot be saved;
      2. There are no minor children or dependents, and the wife (if applicable) is not currently pregnant;
      3. The spouses have entered into an agreement dividing up their property and finances; 
      4. Neither spouse is seeking alimony;
      5. Both spouses waive entitlement to a trial;
      6. Both spouses agree to sign the petition for dissolution of marriage; and
      7. Both spouses will go to the final hearing together.

2. Uncontested Divorce – An uncontested divorce is where the spouses are entered into a marital settlement agreement and parenting plan (if applicable) before either spouse files for a divorce with the Court. It means that all issues and disputes have been resolved between the parties. Issues to be resolved include:

1. 1. Parental decision-making and timesharing
   2. Division of property (also called “Equitable Distribution”)
   3. Alimony
   4. Child Support
   5. Attorney Fees

3. Contested Divorce – A contested divorce is a case that is filed where the spouses have yet to fully agree on disputes. Typically, a spouse files a petition for dissolution of marriage and has the other spouse served with the petition requesting the divorce. The Petition notifies the Court and the other spouse of the issues to be resolved by the spouses (through a settlement agreement) or by the judge (through a trial). Both spouses must exchange financial discovery documents, participate in mediation, and attend regularly scheduled hearings and trials. If, at any point, the spouses fully resolve all of their issues, the spouses can immediately proceed to finalize their divorce without a trial.

Interview attorney(s). Family law cases are stressful and emotionally draining and can make you feel vulnerable or exposed. Select an attorney you believe will align with your desired path and outcome. You may be working with your attorney for months, so you want to be comfortable sharing private details and emotional topics with your attorney.

For more details on this issue, read our article: https://mccarttesmer.com/ways-your-diy-divorce-can-haunt-you-later/.

1. Organize Your Assets. Take inventory of your assets and any assets you believe your spouse owns.
   
   
2. Be Aware Of Your Behavior. Everything you say, purchase, type, or text can be shown to your spouse and the Judge. Every day you are making evidence for yourself, whether good or bad. 

Additional tips: https://www.brides.com/things-to-do-before-you-file-for-a-divorce-1103072

Timesharing is a parenting schedule that outlines specific times (including overnight and holidays) each parent will spend with the child. The parents enter into a Parenting Plan, which lays out each parent’s rights and responsibilities for the child.

The Court is required to determine a timesharing schedule that is in the best interest of the minor child in occurrence with Florida Statute Section 61.13(3).

Paternity rights are established to provide parental responsibility, decision-making authority, and schedule timesharing between a parent and a child. 

If parental rights are established, there are many legal ramifications:

1. Child Support. Both parents are required to financially support the child.
2. Inheritance. If a parent passes away, the child may inherit and collect benefits such as social security, disability, Veteran Affairs benefits, and life insurance proceeds. 
3. Insurance. A parent may provide medical, dental, and vision insurance for their legal dependents.
   

Learn more about Father’s Rights and the July 2023 law (HB 775) in our article: Father’s Rights: New Florida Law Gives More Rights To Unmarried Biological Fathers.

Florida follows the “shared income model” of child support, which means that support is based upon the cost of raising the child together if the parents were in an intact relationship and household. In Florida, Child Support is determined by each parent’s income, the number of overnights the child spends with each parent, and the division of payment of daycare and health insurance costs for the child.

Review instructions online here: https://www.flcourts.org/content/download/403042/file/902e.pdf.

A step-parent adoption creates a legal and binding relationship between a stepparent and a minor child. It is often utilized when a biological and/or legal parent has passed away, or their parental rights have been terminated (either voluntarily or involuntarily). Once created, the stepparent becomes a legal parent and guardian for the child, is financially responsible for the child, and is entitled to parental responsibilities such as decision-making and timesharing.

In Florida, adoptions are governed by Chapter 63 of the Florida statutes. The requirements for a stepparent to adopt a stepchild in Florida are:

1. The step-parent must be able to financially and morally support the child.
2. The step-parent and the step-parent’s spouse (the legal parent of the minor child) must file a joint petition for adoption, which includes (1) the child’s birth date and place of birth, (2) the name that should be given to the child if the child’s name is being changed, (3) a statement of how long the step-parent has lived with the child, and (4) reasons why the step-parent wants to adopt the child.
3. If applicable, the biological parent must consent to the adoption. Or the petition must state why the biological parent’s consent is not required, such as the biological parent’s death. 

• If the minor child is over 12, the minor child must provide written consent to the adoption.

A Prenuptial Agreement is a contract between an engaged couple signed before the marriage and set forth the division of their assets and finances in the event of divorce or death. In preparation of the agreement, both parties must disclose all assets and should be represented by attorneys. It allows the couple while cooperating, to resolve any issues that may arise should the marriage dissolve in the future. Many couples choose to include in their prenuptial agreements provisions regarding:

1. Division and payment of monthly expenses
2. Alimony
3. Premarital and marital assets
4. Inheritance from each other and their respective families
5. Attorney fees 

For more information, read our article, Age Difference and Second Marriages: Tips for Round 2.

A Postnuptial Agreement is a contract between spouses made during the marriage to set apart their assets moving forward or to make a plan for the division in the event of a divorce. Many couples choose to include provisions regarding:

1. Division and payment of monthly expenses
2. Alimony
3. Premarital and marital assets
4. Inheritance from each other and their respective families
5. Attorney fees
   

For more information, read our article, Age Difference and Second Marriages: Tips for Round 2.

A prenuptial agreement is written prior to the marriage and is valid based upon the completion of the marriage, while a postnuptial agreement is written after marriage and requires additional consideration to be valid.