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WHAT DOES ESTATE PLANNING INVOLVE?
Everyone should conduct some essential estate planning to ensure that your desires are carried out after your death, that your family is saved from excessive expenditure and delay, and that someone you trust is in control if you cannot manage things on your own.
Estate planning in Florida generally includes a Will to leave your assets and name your executor, a durable power of attorney to designate someone to care for your finances if necessary, and a Living Will to spell out your wishes for end-of-life medical care. To name someone, a designation of health care surrogate ensures that health providers follow your desires.
You should also consider preventing having your estate formally probated after your death. Probate is a legal process that allows your executor to pay your bills and taxes and distribute your assets to your heirs. Many people would save their families money and time by avoiding the procedure. A living trust or other strategies can help you avoid probate if you act during your lifetime. Your family will not be able to escape the formal probate of your estate once you pass away.
WHAT IS PROBATE?
Formal probate may be required if the estate does not qualify for a more straightforward method of administration. The process begins when the executor named in the Will, or any interested party, petitions the probate court to be appointed as personal representatives of the estate. In most cases, the probate matter is located in the county where the deceased individual resided at the time of death. Beneficiaries and heirs (those who would inherit if a valid Will did not exist) are given notice so that they can object.
Letters of Administration are issued by the court and provide the personal representative permission to settle the estate. A Will must be filed with the court and confirmed to be valid. You can accomplish this by having the Will's witnesses testify under oath as to its authenticity. Alternatively, if the Will is "self-proving," simply submitting the paper is sufficient. A Will is self-proving in Florida if the witnesses sign a statement before a notary public after witnessing the Will-maker sign it.
The personal representative accumulates and inventories assets under the court's supervision, payment obligations, and taxes, and (finally) distribute what's left to the people who inherit it. The personal representative must file a final accounting with the court, detailing the estate's contents, how the personal representative managed the assets, and how the personal representative would distribute them to beneficiaries. Anyone who has a problem with accounting can take it to court.
The personal representative files proof (receipts) with the court and requests that the estate is closed when everything has been dispersed. The court makes an order that closes the estate and absolves the personal representative of future obligations. The entire procedure usually takes several months.
Contracting parties often disagree over the meaning of a contract or clause. The court is often called upon to interpret it. The purpose of a contract is determined by the parties' intent to the extent that the court can determine it from the contract. When interpreting a contract, a court's goal is to define and enforce the parties' purpose when the contract is made.
If the court determines can determine the parties' intent, it will enforce the agreement. That interpretation will bind the parties (even if the parties disagree). Suppose the court cannot ascertain the parties' intent from the contract. In that case, the court may use additional evidence to assist in the determination of the parties' intent. The fact-finder determines the contract's meaning (usually a jury, but occasionally a court judge).