FAQ

Frequently asked questions

What Is Estate Planning?

Estate planning involves creating a plan for the management of your affairs during any time you are incapacitated, and the distribution of your property upon your death. Your estate plan is laid out in legal documents which provide rules on how to manage your affairs during any time that you are unable. This planning is important in the event of an emergency and for when you reach the end of your life.

Why Is Estate Planning Important?

A proper estate plan will help ensure that you and your loved ones are cared for during your life. It will also help ensure that your property is transferred to the people you desire, and in the manner you desire.

What Legal Documents Make Up An Estate Plan?

An estate plan will typically include the following legal documents:

  1. Revocable Living Trust
  2. Last Will & Testament
  3. Durable Power of Attorney
  4. Designation of Health Care Surrogate
  5. Living Will Declaration

What Is A Revocable Living Trust?

A revocable living trust is a legal document that allows you to put your assets into a trust and select a trustee to manage the assets for your benefit (and that of your beneficiaries). A revocable living trust can provide rules on how the assets are to be managed and distributed during your incapacity and upon your passing. The “revocable” reference means you can modify or revoke the trust as your circumstances or desires change. The “living” reference is because the trust is created during your lifetime.

What Is A Last Will & Testament?

A last will and testament, also referred to as a will, is a legal document that controls how your property is distributed upon your death. The people named to receive your property are referred to as “beneficiaries.” The person named to administer your estate upon your death is referred to as the “personal representative.” A will can also be used to name a guardian for minor children.

What Is A Durable Power Of Attorney?

A durable power of attorney is a legal document that authorizes someone to act on your behalf on specific matters, such as making legal and financial decisions. The person you choose is called your “agent” or “attorney-in-fact.” The “durable” reference means the power of attorney remains in effect even if you become incapacitated or disabled.

What Is A Designation Of Health Care Surrogate?

A designation of health care surrogate is a legal document that appoints a person to make health care decisions for you if you become incapacitated. The person you choose is called your “surrogate.” Your surrogate has legal authority to talk to health care providers, manage your medical care, and make medical decisions for you.

What Is A Living Will Declaration?

A living will declaration is a legal document that instructs medical staff on how to treat you if you have a terminal or incurable condition. A living will declaration allows you to instruct others on what medical treatments you would and would not want to be used to keep you alive.

Should I Use An Attorney To Create My Estate Plan?

Yes, you should use an attorney experienced in estate planning. Creating a proper estate plan involves:

  1. Minimizing the tax consequences of transferring your property under state and federal gift and estate tax laws; and
  2. Accurately drafting, within the proper documents, provisions for taking care of you and your loved ones during your life, and the transfer of your property upon your death.

These two goals may sound simple, but estate planning is a complex area of law, and if not done properly can lead to long drawn-out litigation.

What is a Guardian?

A guardian is a person or entity (such as a nonprofit organization or a bank trust department) designated by the court to represent a legally incapacitated individual, referred to as a “ward,” or to manage the ward’s assets.

Who is considered incapacitated?

An incapacitated individual refers to a person who has been officially determined by a court to lack the capability to oversee certain aspects of their property or fulfill some fundamental health and safety necessities.

Who may serve as a guardian?

Any adult residing in Florida, whether related or unrelated to the potential ward, is eligible to serve as a guardian. Certain relatives of the ward who reside outside Florida may also be considered for guardianship. However, individuals with felony convictions or those incapable of fulfilling guardian duties are ineligible for appointment. Professional or public guardians, as well as institutions like nonprofit corporations, are permissible as guardians. In the case of a bank trust department, it can only act as a guardian for the property.

If the incapacitated person, referred to as the “declarant,” designated a preneed guardian through a written declaration before any incapacity determination, the court is obligated to appoint that guardian, provided they are qualified. The appointment stands unless the court deems it contrary to the ward’s best interests.
The court refrains from appointing a guardian in situations where a conflict of interest may arise.

What does a Guardian do?

A guardian entrusted with authority over the ward’s property is obligated to conduct a thorough inventory of the assets, prudently invest them, utilize them for the ward’s sustenance, and submit detailed annual reports to the court, accounting for all transactions. Additionally, the guardian must seek court approval for specific financial dealings.

Regarding the guardian of the ward’s person, they are empowered to exercise rights removed from the ward and delegated to them. This includes overseeing medical, mental, and personal care services, as well as determining the most suitable residential setting for the ward. The guardian of the person is also required to submit a comprehensive yearly care plan and a physician’s report to the court.
In cases where the ward is deemed partially incapacitated, the court will appoint a limited guardian to handle only those rights that the ward is incapable of exercising

Is a Guardian Accountable?

Certainly. A guardian must have legal representation in the form of an attorney, who will act as the “attorney of record.” Typically, guardians are mandated to provide a bond, although financial institutions and public guardians are exempt from this requirement. Additionally, guardians may need to undergo a court-approved training program.

The clerk of the court thoroughly examines all annual reports submitted by guardians of both the person and property, presenting them to the court for approval. Guardians who fail to fulfill their responsibilities adequately may face removal by the court.

Is Guardianship Permanent?

Guardianship is not necessarily permanent. If a ward experiences full or partial recovery from the condition leading to incapacitation, a petition can be submitted to the court to restore the ward’s rights. The court will then reevaluate the ward’s situation and has the authority to reinstate some or all of the individual’s rights.
A guardian can be held accountable and removed if they fail to fulfill their expected duties or become ineligible to act as a guardian. Furthermore, a guardian has the option to resign by formally notifying the court.

What About Guardianship for Minors?

Collectively, parents serve as the natural guardians of their biological and adopted children during their minority, unless parental rights are terminated. In the event of one parent’s demise, the surviving parent assumes the role of sole natural guardian, even in the case of remarriage. Under specific conditions, and upon the petition of a parent, sibling, next of kin, or another individual concerned about the minor’s well-being, the court may appoint a guardian for a minor without the need for an adjudication of incapacity.

In circumstances where both parents are deceased, incapacitated, or if a child receives assets from inheritance, lawsuit proceeds, or an insurance policy with a gross settlement exceeding $50,000, the court must appoint a guardian to represent the minor’s interests before approving the settlement—unless a guardian has previously been appointed, and that guardian holds no potential adverse interest to the minor.
Both parents or a surviving parent can submit a written declaration to the court’s clerk, naming a guardian for the minor’s person or property to serve in the event of both parents’ death or incapacity. Alternatively, a guardian may be designated in a will.

What is Probate?

Probate is a court-supervised process for identifying and gathering the assets of a deceased person (decedent), paying the decedent’s debts and distributing the decedent’s assets to his or her beneficiaries. In general, the decedent’s assets are used first to pay the cost of the probate proceeding, then are used to pay the decedent’s outstanding debts, and the remainder is distributed to the decedent’s beneficiaries.

What Is Trust Litigation?

Trust litigation occurs when a lawsuit is filed in court about a dispute involving a trust. Trust litigation is often initiated by a beneficiary to dispute the validity of a trust document or the actions of a trustee. Trust litigation can also be initiated by a trustee to pursue legal claims of the trust, or to seek court approval for actions taken or to be taken.

What are Examples of Trust Litigation?

The term trust litigation covers many claims (or disputes) that can be brought in court, such as:

  1. Undue Influence
  2. Lack of Capacity
  3. Duress
  4. Forgery
  5. Mistake in Execution
  6. Tortious Interference with an Expectancy
  7. Breach of Fiduciary Duty
  8. Surcharge Action
  9. Creditor Claims

What is Undue Influence?

Undue influence is when someone exerts excessive pressure on another person that causes them to create or change a trust in a way they otherwise wouldn’t, by overcoming that person’s free will.

What is Lack of Capacity?

Lack of capacity is the absence of mental capacity at the time a trust was created. To create a valid trust in Florida (that contains rules for what happens to trust property after the death of the trust maker), the trust maker must understand:

  1. What creating a trust means and the effects and implications of executing such a document;
  2. The nature of their own property and assets;
  3. The relationships they have with the individuals who will receive their property; and
  4. What their trust says about the disposition of their property.

What is Duress?

Duress is when someone forces another person to create or change a trust by the threat of physical, mental, or other harm.

What is Forgery?

Forgery of a trust is when a person fakes another person’s signature or handwriting on a trust document in order to obtain money, possessions, or control.

What is Mistake in Execution?

Mistake in execution is when a trust document has not been signed with the proper formalities. Often a trust document contains rules for what happens to trust property after the death of the grantor/trust maker. In this case the trust document must be signed by the trust maker in the presence of two attesting witnesses, and the attesting witnesses must themselves sign the trust document in the presence of the trust maker and each other.

What is Tortious Interference With an Expectancy?

Tortious interference with an expectancy is a wrongful act by a person that causes economic harm to another person. To establish a claim for tortious interference with an expectancy you must prove:

  1. The existence of an expectancy (i.e., the decedent had a fixed intention to leave you an inheritance);
  2. The intentional interference with the expectancy through tortious conduct;
  3. That tortious conduct was the cause of the lost inheritance (i.e., a strong probability existed that the decedent would have carried out their intention but for the wrongful acts of the defendant); and
  4. Damages (typically the lost inheritance).

Tortious conduct includes (i) fraud, (ii) undue influence, (iii) coercion, (iv) duress, (v) forgery, (vi) destruction of an instrument, (vii) duress, (viii) conversion or theft, (ix) defamation, or (x) a breach of a fiduciary relationship.

What is Breach of Fiduciary Duty?

Breach of fiduciary duty is a claim that can be brought against a trustee when they have not properly administered a trust. Under Florida law, trustees have a fiduciary duty to beneficiaries. These duties protect the rights of trust beneficiaries. Duties of a trustee include:

  1. The duty to administer the trust in good faith, in accordance with the terms and purposes of the trust;
  2. The duty of loyalty to only take actions that benefit the trust and the beneficiaries (for example, putting the financial interests of the trust above their own);
  3. The duty to act impartially in administering the trust property, giving regard to the respective interests of the beneficiaries;
  4. The duty to administer the trust as a prudent person would, exercising reasonable care, skill and caution;
  5. The duty to take reasonable steps to take control of and protect the trust property (including filing or defending legal claims against trust assets);
  6. The duty to keep clear, distinct and accurate records of the administration of the trust;
  7. The duty to keep trust property separate from the trustee’s own property; and
  8. The duty to inform and account to trust beneficiaries, by keeping them reasonably informed of the trust finances and certain events, such as a change in the trustee.

What is a Surcharge Action?

A surcharge action is a lawsuit against a trustee to restore the losses sustained by their breach of fiduciary duty.

When is Trust Litigation Necessary?

You should hire a trust litigation attorney if:

  1. There are assets missing from the trust;
  2. You were unexpectedly disinherited; or
  3. You suspect fraud or criminal activity.

 

Meet the Team

Charles (Chad) R. Walker, Jr.

Construction Law, Business Litigation, Real Estate Litigation, Probate Litigation , Trust Litigation

James M. Flick

Estate Planning, Business Planning, Asset Protection, Probate Administration, Trust Administration, Guardianship Administration
Christian Bonta

Christian Bonta

Probate Administration and Litigation, Trust Administration and Litigation, Guardianship Administration and Litigation

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Charles “Chad” Walker has served Gibbs & Register, Inc. for the past ten years as our de facto general counsel. Chad has demonstrated both a broad knowledge of general legal matters and has been exceptional when it comes to construction law. His knowledge of both the law and the specifics of each issue he has advised us on has been well researched and his proposed strategies have been successful.

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Gibbs & Register, Inc.

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