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WHAT DOES ESTATE PLANNING INVOLVE?
Everyone should conduct some basic 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 become unable to 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 for finances, to designate someone to take care of your finances if it's ever necessary, a living will to spell out your wishes for end-of-life medical care, and a designation of health care surrogate, to name someone to ensure that health providers follow your wishes.
You should also want to think about taking steps now to prevent having your estate formally probated after your death. Probate is a legal process that allows your executor to pay your bills and taxes, as well as distribute your assets to your heirs. Many people would rather 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 simpler method of administration. When the executor named in the will, or any interested party, petitions the probate court to be appointed as personal representative of the estate, the process begins. 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. This can be accomplished 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 in front of a notary public after witnessing the will-maker sign it.
The personal representative accumulates and inventories assets under the supervision of the court, pays obligations and taxes, and (finally) distributes what's left to the people who inherit it. The personal representative must file a final accounting with the court, detailing the contents of the estate, how the assets were managed, and how they would be distributed to beneficiaries. Anyone who has a problem with the accounting can take it to court.
The personal representative files proof (receipts) with the court and requests that the estate be closed when everything has been dispersed. The court makes an order that closes the estate and absolves the personal representative of any future obligations. The entire procedure usually takes six to a year.
Contracting parties frequently differ over the meaning of a contract or one of its clauses. The court is often called upon to interpret the contract when this happens. The purpose of a contract is determined by the parties' intent, to the extent that it can be determined from the contract. When interpreting a contract, a court's primary goal is to define and give effect to the parties' purpose when the contract was made (as that intent is expressed in the contract).
If the court determines that the parties' intent can be determined from the contract, it will interpret the agreement. That interpretation will be binding on the parties (even if the parties disagree). Suppose the parties' intent cannot be ascertained from the contract. In that case, additional evidence may be used to assist in the determination of the parties' intent. The contract's meaning is then determined by the fact-finder (usually a jury, but occasionally a court judge).