When a person is incapacitated or unable to care for their own legal matters, another individual may be assigned guardianship. Guardians are individuals assigned by Florida courts. They oversee the well-being of an incapacitated person or a minor.

Guardianship often entails the management of the incapacitated person’s assets or property. Many life circumstances can result in the need for a guardian. If you have legal questions regarding guardianship in Florida, it’s important to speak with an attorney in Daytona Beach.

Types of Volusia County Guardianship

There are several types of guardianship that can be established under Florida state law. The most common type of Volusia County guardianship is for adults suffering from an incapacity, such as dementia.

However, other types of guardianship exist. For example, a minor may have a significant inheritance and need assistance ensuring the security of their assets. Florida state law requires minors to have a guardian handle large amounts of money for them.

In an emergency, the courts may establish temporary guardianship for someone who has become incapacitated unexpectedly. Temporary guardians typically have authority for a few months while permanent guardianship is established. This legal process generally takes a few weeks to complete.

How to Establish Guardianship in Florida

Establishing guardianship in Volusia County, Florida, involves engagement with the local courts. The person seeking guardianship must first file a petition with the court.

This petition must detail the mental and physical condition of the person for whom the petitioner is seeking guardianship. This person is known as the alleged incapacitated person, or AIP.

The petitioner must submit a written oath to promise they will handle the AIP’s estate in a legal manner. The courts also require an application with details that include the petitioner’s:

  • Work history
  • Educational experience and training
  • Background information

Speaking with a skilled attorney in Florida will ensure that you submit all the required paperwork if you’re seeking guardianship. After this paperwork is filed, the court will appoint a legal professional to inform the incapacitated person about the guardianship.

In some cases, the process will require a medical examination to establish the need for guardianship.

What Does a Guardianship Entail?

When a Florida court rules that an individual is completely incapacitated, the court may appoint a trustworthy person as a plenary guardian. This person wields full decision-making power over the incapacitated person, who is known as the ward.

A plenary guardian can take the following actions on behalf of their ward:

  • Entering legal contracts
  • Defending lawsuits and filing claims
  • Determining the ward’s place of residence
  • Accepting or declining medical treatment
  • Managing and selling property
  • Applying for public benefits

These are only a few examples of the rights bestowed on a plenary guardian in Florida. If you have questions about the role of guardianship in your case, reach out to a knowledgeable legal professional.

When you are seeking guardianship for an AIP, a skilled guardianship attorney can walk you through the process and represent you at required hearings.

Divorce brings a season of change to your life. Some of the changes may be difficult, while others are welcomed. But some changes are incredibly necessary. Updating your estate plan falls into the last category. It is essential your estate plan and documents be reviewed and modified following your divorce. Here are some of the top considerations to keep in mind as you go through the process of changing your estate plan.

Where to Start Updating Your Florida Estate Plan

As soon as it may be practical to do so, you should go over your estate plan and look for changes that need to be made, including:

Beneficiary Designations

If you have retirement accounts, life insurance policies, wills, or trusts set up, review the beneficiary of these. Many Floridians list their spouses as the beneficiaries of these accounts. Without updates, such a designation would continue even after your divorce is finalized.

Designation for Guardian and Power of Attorney

Perhaps you designated your ex-spouse as your children’s guardian and as your power of attorney in the event of incapacitation. Speak with your Daytona Beach probate attorney about possible parties you can name as guardians over your children. Likewise, your attorney may be able to suggest others who may be a more suitable power of attorney than an ex-spouse.

Gifts of Property

Your will may include gifts of specific property to in-laws and other extended family members. As you’re reviewing the beneficiaries of your will, ensure that any specific bequests of property are also updated as necessary.

Help from a Qualified Daytona Beach Probate Attorney

Changing beneficiaries for financial accounts and legally amending your will can be a complex process. An experienced probate attorney in Daytona Beach can be a helpful guide as you set out to accomplish these tasks in a timely, effective manner.

 

In Florida, when a loved one requires extra assistance to care for themselves, the courts can appoint a person to legally become their guardian.

A Volusia County guardianship will allow you to assist your loved one in 4 ways:

1. Choosing the residence

As part of guardianship, you become able to control how and where your incapacitated loved one will live.

In cases of disabled adults, it will be your job to ensure they find safe and adequate housing or that they can live with you in an environment that meets their medical needs.

2. Medical Care

When you become a guardian, you’ll have to take on the day-to-day medical care for your ward.

Typically, guardianships are sought when a person can’t provide adequate care for themselves, such as adults with disabilities. One of your biggest responsibilities will be to ensure your ward gets the right treatment, medications, therapy, counseling, and so forth.

3. Managing Finances

You will also be entrusted to maintain all of your loved one’s financial assets.

When a guardianship is granted, you’ll establish a special bank account — that restricts the use of your ward’s assets — to pay for their care.

Should they have any assets such as property or investments, you’ll also be required to manage these safely and responsibly.

4. Reports to the Court

As part of your guardianship agreement, Florida courts will require you to provide various ongoing reports to monitor and ensure the welfare of your loved one.

These include any care plans, medical reporting, and financial statements.

Volusia County Guardianship

Consulting with a seasoned guardianship lawyer will help you determine the right course of action if you’re considering applying for guardianship.

In Florida, the practice of using “lady bird deeds” to transfer property following a death has become increasingly popular. The term got its name from former president Lyndon B. Johnson, who used a deed to leave property to his wife, Lady Bird, after his passing.

What Is a Lady Bird Deed?

A lady bird deed is a kind of estate deed that enables you to leave your real estate to your beneficiaries without probate.

You are able to maintain full control of your property while you are alive.

This type of deed is also frequently used when a person is preparing to apply for Long Term Care Medicaid, since the “gift” does not occur until you die.

Advantages of a Lady Bird Deed in Estate Planning

There are several advantages to using a lady bird deed in Florida. The single largest benefit is the ability to prevent your real estate from going through probate after your death.

A lady bird deed also has the benefit of separating the property from Medicaid eligibility while the deed is in effect. Under this approach, you can keep ownership of your home while still qualifying for Medicaid.

Since you maintain full control of the property, this means that you may still do many things with the property, such as sell it, get a mortgage on it, or give it away, without having to notify the people designated to receive the gift following your death.

Contact a Daytona Beach Probate Attorney

Florida is one of the only states in the country where lady bird deeds are legal. A Daytona Beach probate attorney has the experience and expertise to guide clients through the lady bird deed process.

If you’re looking for a way to transfer property ownership without going through the probate process, a lady bird deed may be the right solution. This type of deed gives the owner continued control over the property until their death, after which it’s automatically transferred to new owners.

While this may be a great way to avoid probate, there are also some downsides to consider before making a decision. Here, we will have a look at the pros and cons of lady bird deeds so you can make an educated choice.

Pros of a Lady Bird Deed

A lady bird deed offers several advantages. These include:

  • It can help you avoid probate
  • It gives you more control over what happens to your assets
  • It offers you full control of the asset throughout your lifetime
  • It can help protect your assets from being used to pay for long-term care costs
  • It may provide tax benefits for your beneficiaries

If you’re considering creating a lady bird deed, this list of pros might help you make a decision.

Cons of a Lady Bird Deed

Of course, there are also potential drawbacks to a lady bird deed. These include:

  • This type of deed requires very specific language and may require the assistance of an attorney
  • It must be recorded to be effective.

If you’re considering using a lady bird deed in your estate planning, seek legal counsel to ensure it is the best option.

How an Attorney in Daytona Beach Can Help

While some people may view consulting an attorney in Daytona Beach as an unnecessary expense, attorney services can save you a lot of money and headache in the long run. Whether you’re drafting a lady bird deed or any other legal document, it’s important to have an attorney review it to ensure everything is in order.

A lady bird deed can be a great tool for estate planning, but it may not be right for everyone. Contact an attorney in Daytona Beach to decide whether a lady bird deed is best for you.

Q: Is there a difference between a “living will” and a “do not resuscitate” order?

A: Many people wonder about the difference between a living will and a do not resuscitate order (DNR).

While they both address end-of-life wishes, they are actually two different documents and are typically used in different settings.

Your living will is a written statement reflecting your wishes about life sustaining treatments in the event of a terminal illness, end stage condition or persistent vegetative state.

It acts as a directive to physicians, should you be incapable of advising them orally. This document is typically considered one of the essential estate planning documents and is usually prepared by an elder law attorney.

The average person usually doesn’t know much about how their assets are distributed at the end of their life. How is the will handled? What does probate even mean? How can a revocable trust help you in the probate process?

These are all very good questions. This uncertainty is why you need to have them answered by an experienced Daytona Beach probate attorney.

What Is Probate?

When someone dies, the legal process of finalizing their estate and last wishes is called probate. During this process, a deceased person’s assets and debts are administered by the probate court. If there is a Last Will and Testament, that document will control what happens to the assets. If there is no Last Will and Testament, the assets will pass to the heirs at law.

In Florida, a probate case must be handled by an attorney.  In addition to the attorney fees, there are additional costs such as filing fees.  The process can also be time consuming.

A Revocable Trust is designed to help avoid the costly and time consuming probate process.

An estate planning attorney in Daytona Beach will be able to help you set one up.

How a Daytona Beach Probate Attorney Helps with Revocable Trusts

A revocable trust is a document that, like a Will, will determine the recipients of your assets when you pass.  However, by placing you assets in the trust, your beneficiaries will be able to obtain the assets without a lawyer or a court!  You will name someone you trust, a Trustee, to be in charge of this process.

The Law Office of Debra G. Simms will guide you through the process of setting up a Revocable Trust.

If you’ve ever experienced the passing of a loved one, you’re likely to be familiar with probate. Probate can be a challenging and time-consuming process, but there are methods to help avoid it altogether.

If you’re looking to create an estate plan, a probate attorney can help you with a revocable living trust. It can help avoid probate in Florida and create a more peaceful transition for your family at your passing.

What Is Probate?

Probate is a court-supervised process allowing for the identification and distribution of a person’s property and assets after they’ve passed. Additionally, it helps the individual responsible for the person’s estate, called the personal representative, achieve other tasks, including paying off creditors and taxes.

When an individual passes away with an estate plan, including a will but no trust, probate becomes necessary.

What Is a Revocable Living Trust?

If you’re looking to set up a trust, there are many to choose from. Revocable living trusts are among the most common.

A revocable living trust is a document you create during your lifetime that helps create a plan for your money and assets after your passing. It helps distinguish who your beneficiaries are and who gets what when you die.

A revocable trust is revocable because you can modify or revoke it at your discretion, as opposed to an irrevocable trust that cannot be changed or revoked.

When you create a trust, you retitle all of your assets in the name of the trust. You select a trusted individual, a trustee, to manage and distribute those assets to your named beneficiaries once you’ve passed. 

With a revocable trust, you, the grantor, still have access to your assets, but they’re protected in case of your death.

Benefits of a Revocable Trust

There are many advantages to a revocable trust, the most important of which is the grantor’s ability to modify the terms of the trust or void it altogether at any time.

While many are familiar with wills, revocable trusts can offer similar protections but better. A will dictates who gets what at your passing but doesn’t go into effect until you’ve passed. When you have a revocable trust, your assets are protected even if you remain living but become incapacitated. 

Avoiding Probate with a Revocable Living Trust

Another important benefit to having a revocable trust is its ability to help bypass the probate process.

Even if you have a will, it does not guarantee it won’t need to be probated at your death. When you have a revocable trust, the trustee will be able to transfer your assets to the designated beneficiaries without the need for probate.

Probate can be a long, drawn-out, and sometimes contentious process for many families. Having a revocable trust can help avoid the need for probate, saving valuable time and money.

A Probate Attorney in Daytona Beach Can Help You

If you’re looking to set up a revocable trust or your loved one has passed, and you need assistance with probate, a knowledgeable lawyer can provide top-quality legal assistance.

Estate planning and the probate process can be confusing and stressful. Let a Daytona Beach probate attorney help you.

Formal administration and summary administration are two forms of probate used when a deceased person’s assets do not have a “payable on death” provision, joint owner, or beneficiary designation.

Summary administration is only available when the total value of the assets subject to probate is less than $75,000 or if the decedent has died more than two years before the filing.  It can also be used when the only asset is a Florida homestead.  Formal administration is used for all other estates or if a personal representative, or executor, is necessary.

Considerations for Choosing Summary vs. Formal Probate

Summary probate has a shorter time frame than formal administration — an average of 3-6 months vs. 6-18 months — and typically costs less. It’s also less complicated, and the probate court doesn’t require as much documentation as a formal administration.

However, with a summary administration, a personal representative is not appointed by the court.  Often times, a life insurance company or retirement plan will require a personal representative even when the assets are below $75,000.

Formal probate, also known a full administration is a lengthier process and requires more documentation than summary administration.

In formal administration, the court will appoint the personal representative who is granted the authority to gather information about any debts or assets belonging to the deceased.

The personal representative is issued Letters of Administration, which gives them access to banking and other financial information. They may also deal with creditors on behalf of the estate and negotiate any claims they deem invalid or questionable.

Formal administration takes longer than summary, costs more, and requires more steps to settle the estate.

Which Method Is Better?

Determining the correct course of access to settle the estate depends on the total value of the deceased’s assets, any debts, and whether there is pending litigation against the estate’s assets.

What is a Valid Will in Florida?

A will is a document that determines who receives a person’s property when they pass away. Florida law requires that a will must be signed by the testator (the person writing the will) and two witnesses to be enforceable. The testator must either sign in front of the witnesses or tell the witnesses that he or she previously signed the will. The witnesses must sign together in the presence of each other and in the presence of the testator. The rules for the execution of wills are found in Florida Statute 732.502.

It is not necessary for a will to be notarized for the document to be valid. Notarized wills are preferred as they are easier to admit to probate court. A notarized will is referred to as a “self-proved will.” When a will is not notarized, a witness to the will must make a statement to the probate court confirming that they witnessed the will. When a will is notarized, a witness statement is not required. It is easier to have a will notarized.

What Happens When You Die in Florida Without a Will?

When a person dies without a will, their assets go to their spouse and/or closest relatives. Florida Statute sections 732.102 and 732.103 specifically determine how a decedent’s property is divided when they die without a will under the 2022 Florida Probate Rules. This process is referred to as intestate succession.

Call the Law Offices of Debra G. Simms at 386.256.4882 to learn more.

This blog post is not case-specific and is provided only for educational purposes and is not intended to provide specific legal advice. Blog topics may or may not be updated and entries may be out-of-date at the time you view them.

 

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823 Dunlawton Ave. Unit C
Port Orange, FL 32129
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New Smyrna Beach, FL 32168
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