Unfortunately, there are many issues that can arise throughout the probate process and litigation is sometimes needed to resolve them. These disputes can cause delays in the probate process, and they can lead to many other issues, as well. Below, our Daytona Beach probate lawyer outlines the most common issues we see.

Common Disputes During Probate 

Part of the probate process is dedicated to dealing with any disputes that may arise. Although many arguments may be made, the most common types of disputes include:

• Trust or will validity: People with an interest in the estate, such as beneficiaries or heirs, may argue that a will or trust is not valid. They may claim that the signature on a will was forged or that the decedent was under undue influence at the time that they created or signed a will or trust.
• Trustee or executor issues: Individuals with an interest in the estate may argue that the trustee or executor breached their fiduciary duty, mismanaged the estate, or otherwise acted dishonestly or inappropriately.
• Disagreements among beneficiaries: One or more beneficiaries may dispute how property in the estate is distributed and claim that they are entitled to certain assets not outlined in a will or estate plan.
• Creditor claims: If a creditor believes the decedent owed them a debt at the time of their death, they can make a claim against the estate to recover the debt.

How to Resolve Disputes During Probate 

It is best to try and avoid disputes during probate, but it is not always possible. Probate is already a long, expensive process and disputes will only make it more stressful and time-consuming for everyone involved.

If a dispute does arise, it is important to try and resolve them without litigation. Litigating disputes requires taking them to court, making the process even longer and more expensive. Arbitration and mediation are two forms of alternative dispute resolution that can help you address issues out of the courtroom. Of these two, mediation is most often preferred because it gives both parties more control over the process. During litigation and arbitration, a third party will make all final decisions. To avoid disputes, or handle them when they arise, it is best to work with a Daytona Beach probate lawyer.

Call Our Probate Lawyer in Daytona Beach for Legal Help 

If you are facing a probate dispute, it is important to have legal representation for you and your family. At Bundza & Rodriguez, our Daytona Beach probate lawyer can provide the advice you need to resolve the dispute and give you and your family the best chance of a positive outcome. Call us today at 386-252-5170 or chat with us online to request a free review of your case and to get more information.

Source:

leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0733/0733ContentsIndex.html

Your Rights if Your Spouse Died Intestate 

When a person passes away without a will in place, they are said to have died intestate. If your spouse died intestate, you have a right to 50 percent of 100 percent of their estate, depending on if you had children together. The manner in which their estate is divided is as follows:

• If you and your spouse are both the biological parents of children you share, you will receive your spouse’s entire estate.
• If your spouse had a child from a previous relationship and you are not the biological parent, you will receive half of your spouse’s estate.
• If you and your spouse are both the biological parents of more than one child, but you are the parent of a child you did not share with your spouse, you will receive half of the estate.

If your spouse drafted a will before you were married, you have the same rights you would if your spouse had passed away without a will. Still, there are some exceptions to this.

Factors that Can Affect Your Spousal Rights 

Although you do have many rights as a surviving spouse, there are certain factors that can impact them. These include:

• You and your spouse had a premarital or postnuptial agreement that waived your right to the family home or other assets.
• Your spouse’s will outlined specific property that was left to you.
• Your spouse’s will specifically states that you should not receive any of their property after their death.

It is also important to understand that state law in Florida makes it very challenging to disinherit a spouse. Unless there was a premarital or postnuptial agreement in place, you still likely have a right to an elective share. You have rights to the elective share even if the estate is not subject to probate.

The elective share is equivalent to 30 percent of your spouse’s estate. This property can include revocable trusts, life insurance policies, pay-on-death accounts, and more. You must receive the elective share within two years of your spouse’s death or within six months of receiving notice of administration of the estate.

Our Probate Lawyer in Daytona Beach Can Help You Exercise Your Rights 

While the above laws are a general overview of your rights, the matter can become complicated, particularly when you are dealing with it during a time of grief. At Bundza & Rodriguez, our Daytona Beach probate lawyer can explain the law as it applies to your case and make sure your rights are upheld. Call us now at 386-252-5170 or contact us online to schedule a free consultation and to get the legal advice you need.

Source:

leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0733/0733ContentsIndex.html

When a person raises the challenge of undue influence, they are essentially saying that a decedent did not have free will when creating estate planning documents. Instead, they were under another person’s duress, persuasion, coercion, or fraud. If someone has argued undue influence regarding your loved one’s last wishes, you can fight back against it. Below, our Daytona Beach probate lawyer explains how to do it.

Living Independently 

In most cases, undue influence occurs when an individual is in a power of control or authority over someone else. The person who is under undue influence is usually weak and highly dependent on other people. For instance, an in-home care worker may convince the patient they are caring for to name them as power of attorney or to designate them as a beneficiary in their will.

Proving that your loved one was independent and lived by themselves, or with a spouse, until their death is one way to prove that they were not under undue influence when they created their estate plan. When a person lives independently, it can prove that they are capable of making their own decisions and thinking for themselves. People who remained independent until the time of their death are unlikely to become victims of undue influence.

Managing Their Own Financial Affairs 

If a person is independent and in control of their own life, they likely also manage their own financial affairs. However, there are other instances in which one may manage their own financial affairs, as well. For example, a person in a nursing home may have limited mobility, but may also be able to manage their own finances.

When a person is able to manage their own finances, the probate courts will typically take this as a sign that they can think independently without being under the undue influence of someone else. Paying their own bills, making decisions on investments, and creating their own budget are some ways to prove that someone can manage their own financial affairs.

Our Probate Lawyer in Daytona Beach Can Help You Disprove Undue Influence 

Just because someone argues that your loved one was under undue influence when creating or changing their estate plan, does not mean they will be successful. However, you need strong arguments to disprove these claims. At Bundza & Rodriguez, our Daytona Beach probate lawyer can help you disprove these arguments so you and your family are fully protected and can move forward with administering your loved one’s estate. Call us now at 386-252-5170 or chat with us online to request a free consultation and to get the legal help you need.

Sources:

americanbar.org/groups/law_aging/publications/bifocal/vol_35/issue_3_feb2014/defining_undue_influence/

leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0732/0732.html

What are the Advantages of the Probate Process? 

Although many people think the probate process does not have any advantages, that is not true. The biggest benefits of process are as follows:

• In cases when a person dies without having a will in place, probate can make sure issues do not arise in the future. All property will be divided according to the intestacy laws in Florida.
• The probate process can reassure surviving loved ones that there is a trusted procedure in place that will distribute the assets in the estate appropriately.
• When a person does have a will and passes away, the will has to be proved during the probate process, which can make sure their last wishes are fulfilled.
• Probate can help distribute property that was not included in a will.
• Probate can help surviving loved ones and beneficiaries ensure that all necessary debts and taxes associated with the estate are paid.
• Creditors only have four months to file a claim against the estate if the deceased carried debt in their name.
• Probate is particularly useful in distributing smaller estates, in which the deceased could not afford to plan for their estate during their lifetime.

What are the Drawbacks of the Probate Process 

Probate can be very beneficial in many situations but there are also times when people should try to avoid it. The biggest drawbacks of the probate process include:

• Probate can take anywhere between seven months and one year to complete. At times, it may take longer. As surviving family members wait for the process to complete, they have to spend time and energy finding and collecting paperwork, and meeting with a lawyer.
• Property in the estate cannot be distributed to beneficiaries until the probate process has been completed.
• Probate happens in court, which means it becomes part of public record. This means that personal, family, and financial information is not kept confidential, which can cause a problem for heirs.
• The probate process can become expensive. Attorney, court, and executor fees are deducted from the estate’s value. This can cost between four and ten percent of the overall value of the estate.

Our Probate Lawyer in Daytona Beach Can Advise On Your Case 

Like all cases involving estate planning, determining whether you should try to help your loved ones avoid the probate process is a very personal decision. At Bundza & Rodriguez, our Daytona Beach probate lawyer can offer the sound legal advice you and your family need so you can make informed decisions. Call us now at 386-252-5170 or chat with us online to schedule a free review of your case and to learn more about how we can help.

Source:

help.flcourts.gov/Other-Resources/Probate

Why Do People Object to Probate? 

If you believe that the property in your loved one’s estate is not being administered properly, you can file an objection to probate proceedings. Objections are handled during many different stages of the probate process. After the objections are handled and the entire estate has been administered, it can then be closed. If you have legal grounds for objecting to asset distribution, you have a legal right to do so. There are many reasons to object to probate but some of the most common include:

• The personal representative is not properly managing the assets of the estate
• Objections to claims certain creditors have filed against the estate
• Objections to the personal representative appointed by the court, when a deceased individual did not name one in their estate plan
• Objections to the validity of estate planning documents, such as a revocable trust or a will

How to File a Petition to Object 

To object to probate, you need to file a petition with the court. It is important to work with a Daytona Beach probate lawyer before you file the petition. An attorney can review the facts of your case, determine if you have a right to object, and help you draft the petition, which must outline the reason for your objection. There are also many procedural rules you must follow before the court will accept your claim, and an attorney can advise on what those are and ensure they are followed.

How to Object to Creditor Claims 

As part of the probate process, the personal representative must notify any creditors of the death if they may have a claim against the estate. If a creditor files a claim against an estate, the personal representative or any other person with a legal interest in the estate, can file an objection to the claim. For example, if a creditor files a claim against the estate and as a beneficiary, you know the debt has already been paid, you can file an objection even if the personal representative chooses not to.

Call Our Probate Lawyer in Daytona Beach Before Objecting 

Losing someone you love is one of the hardest things you will ever experience. Having reason to file a legal objection only makes it more difficult. At Bundza & Rodriguez, our Daytona Beach probate lawyer will review your case to fully understand the issue and ensure that your loved one’s estate is distributed properly. Call us today at 386-252-5170 or chat with us online to request a free case review and to hear more about your legal options.

Sources:

leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0732/0732.html

leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0736/0736.html

Transfer Ownership 

Transferring ownership of property is one of the easiest ways to avoid probate. For instance, if you transfer ownership of your home to an adult child, the property is entirely removed from the estate and so, it does not have to go through probate. Transferring ownership can pose certain risks so before making any changes, it is critical to speak to an attorney first.

Name Beneficiaries on Certain Assets 

Certain types of property will allow you to name beneficiaries. For example, you can name a beneficiary on a bank account by designating it as a payable on death (POD). Once you pass away, the funds will be transferred to the beneficiary directly. Additionally, if you purchase a life insurance policy, you can also name a beneficiary and the policy will not go through the probate process. Naming beneficiaries is not always enough, though. It is important to regularly review and update your beneficiaries any time your life situation changes.

Draft a Revocable Living Trust 

During your lifetime, you can draft a revocable living trust and place certain property within it. Trusts are generally not subject to the probate process and so, any property within a trust can be distributed directly to your heirs. You can name yourself as the trustee of the trust, meaning you have the authority to make changes to it. However, you should also name a successor trustee who can administer the trust in the event that you pass away.

Summary Administration 

While it may not be possible to avoid the probate process entirely, you may be able to reduce the value of your estate. If the estate is valued at less than $75,000, it may qualify for a summary administration, which will simplify the probate process. Summary administration is also possible when someone has been deceased for two years or more.

Contact Our Probate Lawyer in Volusia County Today 

Many people want to help their loved ones avoid probate, as the process can take many months, or even years. It can also be very expensive. At Bundza & Rodriguez, our Volusia County probate lawyer can help you draft an entire estate plan that will protect your loved ones, and that could help them avoid the process entirely. Call or text us now at 386-252-5170 or chat with us online to schedule a free review of your case and to learn more about how we can help protect you and your family.

Source:

leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0731/0731.html

Why Is Inheritance Such a Complicated Legal Matter?

The main reason is that the person who actually owned the money is no longer around to speak for themselves. Without so many legal regulations, the situation to quickly devolve into family members arguing all sorts of unverifiable claims in court about promises that the deceased relative alleged made to them when he or she was alive. The solution is to treat the deceased person’s property as a legal entity, as though it were a business. Like a business, a will or trust cannot speak for itself, but it has documents and named legal representatives to speak on its behalf. Therefore, a will or trust must file a tax return, like businesses do, because it has income (interest on assets) and expenses (legal fees, paying the deceased person’s debts). A will or trust requires its own tax ID number, just like a business does.

What Is a Revocable Living Trust?

A trust is a legal entity in which you (the grantor) choose someone (the trustee) to distribute your assets to the person you have chosen to receive them (the beneficiaries.) There are two main reasons that people choose revocable trusts. The first is to make it easier for their heirs to access the money after the grantor (the person who set up the trust) dies. If you just leave a will, your estate has to go through the probate process in court. The other advantage is that the “revocable” part means that you, as the grantor of the trust, can easily amend your decisions about how you want to divide your assets whenever you choose to.

Some people choose living trusts in the hopes of avoiding paying estate taxes, but taxation is inevitable. If you want to leave your money to someone, either you or the beneficiary will have to pay considerable taxes on it. Attempts to avoid paying taxes on inheritance almost always backfire in one way or another.

Contact Bundza & Rodriguez About Estate Planning

It is never too early to start planning your estate. Contact Bundza & Rodriguez in Daytona Beach, Florida for sound legal advice about your estate.