Probate

By: Kevin R. Albaum
Clark, Campbell, Lancaster & Munson, P.A.

Q: What is probate, and should I craft an estate plan to avoid it?

A: Probate is a court-supervised process of transferring assets after a person dies. Assets subject to probate do not include those that were payable to a named beneficiary (e.g., life insurance), owned by a trust, or owned jointly with rights of survivorship (e.g., joint bank account between spouses). Anything not directed to another person upon death may become subject to probate. Formal administration, which is the most common probate proceeding, typically takes approximately one year to resolve. Due to the time and legal expenses involved, it is advisable to craft an estate plan that avoids probate.

To avoid probate, an individual planning his or her estate should discuss with an attorney the proper way to title assets in multiple names or placing assets within a living trust. By titling all assets with multiple names (in the proper manner, so as to provide automatic transfer to the second owner upon death of the first), probate can be avoided. A properly funded living trust can hold a person’s assets and often can be administered without court intervention. The process is technical, and you are encouraged to get counsel to assist so as to best ensure avoiding a probate proceeding.

Although many dread probate proceedings, there may be advantages to court supervision. For example, the Florida probate process allows for an estate to clarify what creditor claims exist and cut off claims of lazy or careless creditors. In the court proceeding, a “notice to creditors” is filed, allowing a 90-day period for creditors to file claims against the decedent’s assets. If claims are not filed within the 90-day window, they are forever barred.

 

The June 4th edition of “The Law” will discuss liability issues of concern to nonprofit boards of directors.

Kevin Albaum is an estate planning and elder law attorney with the law firm Clark, Campbell, Lancaster & Munson, P.A. and a proud member of the National Academy of Elder Law Attorneys (NAELA). NAELA has designated May as National Elder Law Month to focus on educating seniors about legal options. NAELA and its member attorneys provide legal advocacy, guidance, and services to enhance the lives of seniors and people with disabilities. Questions can be submitted online to thelaw@clarkcampbell-law.com.

Guardianships

By: Kevin R. Albaum
Clark, Campbell, Lancaster & Munson, P.A.

Q: My father has difficulty living on his own. Does he need a guardian?

A: A common misconception exists that a guardianship is necessary whenever an aging adult experiences some level of incapacity or difficulty making personal, financial, or healthcare decisions. Subjecting a person to guardianship should be the last option, and it is often the most costly option. When you contemplate a guardianship for a friend or family member, ask yourself how you can help and protect the person in the least restrictive manner possible.

A meeting between concerned friends and family members can uncover support mechanisms already in place for safety and care and can expose any deficiencies. Alternatives to guardianship are available, including durable powers of attorney, revocable trusts, friends or family serving as representative payees for government benefits, hiring of a geriatric care manager, joint bank accounts, health care surrogates, and simple family and friend supervision and involvement. After exploring whether these options offset the incapacities of the aging adult, consult with an attorney to discuss initiating guardianship proceedings, wherein the court will determine the nature and extent of incapacity and appoint a guardian if appropriate. The scope of the guardian’s powers, if any, will depend on the extent of incapacity, which is determined primarily a court-appointed medical examining committee. The court and committee will explore and consider the least restrictive alternatives to guardianship, because guardianship may result in the aging adult losing rights to make his or her own decisions about travel, expenses, and other every day choices.

 

The May 21st edition of “The Law” will continue our coverage of National Elder Law Month with a discussion about the “probate” process that occurs when an individual dies without having specified beneficiaries for all assets.

 Kevin Albaum is an estate planning and elder law attorney with the law firm Clark, Campbell, Lancaster & Munson, P.A. and a proud member of the National Academy of Elder Law Attorneys (NAELA). NAELA has designated May as National Elder Law Month to focus on educating seniors about legal options. NAELA and its member attorneys provide legal advocacy, guidance, and services to enhance the lives of seniors and people with disabilities. Questions can be submitted online to thelaw@clarkcampbell-law.com.