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probate litigation

What is Contested Probate?

Probate is the process of executing a decedent’s will and distributing their assets to beneficiaries. While having a will is an important part of estate planning that ensures your loved ones know how you would like your estate to be handled, sometimes family members disagree about executing the will. When this happens, the will can be formally challenged in a process called contested probate. We discuss contested probate in detail below.  

Understanding Probate

Contested probate occurs when anyone with a vested interest in the decedent’s last will and testament formally challenges its validity. Someone may challenge a will if they believe they were unjustly removed from it, it was not properly executed, or it was inaccurately drafted. When probate is contested, a formal challenge (or petition) is submitted to the probate court, and a judge decides on the will’s validity. 

 

Reasons for contesting a will 

There are several reasons someone may contest a will. In these situations, the burden of proof lies with the person challenging the will. 

Validating the document 

For a will to be valid in Florida, it must meet the requirements stated in Florida Statute 732.502, such as being signed at the end of the document by the decedent and two witnesses. If the document was not properly signed or witnessed, it could be contested or revoked. 

Undue influence 

Undue influence is one of the most common ways wills are contested. Undue influence means that the will was drafted or altered due to forceful manipulation by someone who would substantially benefit from it. The person challenging the will must offer evidence that the decedent was pressured or persuaded into drafting the will in a particular way to benefit another person who was active in its creation. 

Improper removal

If someone believes they were unjustly removed from someone’s will, they can dispute it. The person may prove they were included in a previous version and that the decedent was removed by mistake or unjustly.

Capacity

The person must be of sound mind and full mental capacity to draft a will. If someone proves that the decedent was not fully aware of the will they were preparing, it could be challenged and considered invalid. The person challenging the will would have to provide evidence that the decedent had a persistent condition such as dementia or Alzheimer’s that prevented them from signing the document willfully. They may also provide evidence that the decedent suffered from delusion, meaning they were legally “insane,” which would invalidate the entire will. 

Under duress

If it is proven that someone signed or modified a will under the threat of physical harm to themselves or a loved one, the will could be challenged in court. 

Fraud

A fraudulent will is made under false pretenses, such as drafting a will based on false information from a noted beneficiary.

 

How to contest a will 

Generally, a will can be contested within 90 days of the notice of administration, the formal start of the probate process. Beneficiaries or other interested parties may challenge a will. A formal petition must be presented to the probate court where probate is taking place (the county where the decedent resided). The petition should specify whether the will should be revoked, modified, or invalidated and why the will is challenged. Once the estate is notified, the case will be settled or go to a hearing for a judge to determine the will’s validity. 

Florida contested probate attorneys 

Challenging a will can be a complex legal process, so it is beneficial to have experienced probate attorneys at The Boutty Law Firm represent you to contest a will’s validity. Call us today at 407-710-0461 for a consultation. 

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new business

Choosing the Right Business Entity

It is a new year, which means you may be thinking about starting a new business. Launching your business begins with choosing the right entity, accounting for your future business goals. In Florida, there are various options available when establishing your business. Here are the most popular business entities and the advantages and drawbacks of each type. 

Sole proprietorship

Sole proprietorships are the most common business structure. New businesses are automatically classified as sole proprietorships in Florida unless registered with the state. Sole proprietorships are owned and operated by individuals; there is no distinction between the business and the person. If you want to establish a different business name, you will need to register your sole proprietorship under a fictitious name, called a DBA (“doing business as”). DBAs must be registered with the state.

Advantages

Sole proprietorships are quick and easy to set up. They require almost no paperwork and are set up automatically.

Disadvantages 

Since there is no distinction between the owner and the business, sole proprietors are liable for personal and business assets. This means someone can sue a sole proprietor for their home and other personal assets, not just their business profits. 

Limited Liability Company (LLC)

Another typical business structure is an LLC. LLCs may be operated individually or with several employees and contractors. LLCs must be registered with the state and keep up yearly registration fees and licenses, depending on the type of business. 

Advantages

LLCs are separate business entities that are not tied to the business owner’s personal assets. If someone were to sue an LLC, they could only sue for the business’ profits. LLCs allow for distinguished business structures without the formalities of a corporation. 

Disadvantages 

LLCs require some paperwork to set up and be registered yearly with the state. LLCs require separate accounting for the business, which increases paperwork and tax preparation costs.

Corporations 

Corporations are entirely separate entities from individuals or business owners. Essentially, a corporation can act as an individual: loaning and borrowing cash, filing lawsuits, hiring employees, and entering contracts. Business ownership is obtained by purchasing stocks in the business. While many individuals may operate a corporation, shareholders are the business owners.

Advantages

The advantages of creating a corporation are that it is self-sufficient and runs separately from business operators. Forming a corporation may be a good idea if your future business goals include international expansion. 

Disadvantages 

Corporations have strict guidelines and laws they must follow. Detailed record keeping is required, and accounting records must be submitted to the state to ensure legal operation. There are also more taxes involved with forming a corporation. 

Non-profit 

A non-profit is a charitable corporation formed for philanthropic, educational, scientific, or religious reasons. Non-profits are run by a board of directors and operated by individual employees or volunteers. Non-profits must apply and be approved for 501(c)3 (tax exemption) status. 

Advantages 

Non-profits are tax exempt, by far one of the most significant advantages of this business entity.

Disadvantages

There are many policies non-profits must follow. This type of business structure is only available for certain kinds of businesses. 

Boutty Law Firm: Orlando business attorneys 

The Boutty Law Firm can help ensure your new business is in good legal standing. We can help you file paperwork to get your business affairs in order, as well as draft up employee contracts and help file quarterly reports. Contact us at 407-622-1395 to learn how we can help your business grow. 

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Trusts

Types of Trusts You Should Know

A trust is a common way of transferring wealth from one generation to another as a part of an estate plan. Depending on your estate, having a trust may have several advantages. Below, we discuss the different types of trusts so you can evaluate which one should be a part of your estate plan. 

What is a trust? 

A trust is a fiduciary relationship between a trustor (the person creating the trust), a trustee (the person managing it), and beneficiaries (those receiving the assets of the estate). A trust is a way of transferring the property and assets of an estate without going through the probate process after the trustor passes away. Trusts cannot be contested in court, which speeds up the process of dividing assets. Trusts go into effect once created, even if the trustor is still living. Trusts give trustors and trustees more control of their assets and estate division. However, they are generally more expensive to establish and must be regularly managed. Every trust must include a trustor, a trustee, a successor trustee, and beneficiaries. There are many different types of trusts to serve the needs of your estate. Below, we discuss the most common ones. 

Living trusts

Living trusts are established when the trustor is still living and managed during their lifetime. They can be changed and altered after their creation. While the trustor is still living, the property and assets within the trust are owned by them. A living trust becomes “operational” after the trustor’s passing. A living trust may be revocable or irrevocable. 

Revocable trusts

Revocable trusts are a type of living trust with the purpose of avoiding probate. Once the trust is set up, no lawyer or court fees will need to be paid. Once the trustor dies, the property in a revocable trust is immediately transferred to the named beneficiaries.

 Irrevocable trusts 

Irrevocable trusts are often established for tax reasons. These types of trusts cannot be altered or revised. The trustor loses control of the assets in this trust when creating it. These types of trusts help with planning for Medicaid, gifts, and tax from life insurance payouts. 

Testamentary trusts 

Testamentary trusts are trusts that are established from instructions in someone’s will. This type of trust allows a trustee to distribute estate funds to beneficiaries after the trustor passes away. The will’s executor is in charge of this type of trust. These trusts reduce estate tax liabilities but still need to go through probate. Another benefit of these trusts is that you can name minors as beneficiaries and establish milestones or timeframes that will give them access to the assets in the trust, such as when they turn 18 or graduate college. 

 Charitable trusts 

Charitable trusts are trusts established to gift funds or assets to charity after the trustor passes away. Charitable trusts reduce or avoid the estate tax liability of the gift. 

Maitland estate attorney: Boutty Law Firm 

An experienced estate planning attorney at the Boutty Law Firm will help you determine which type of trust is best for your particular estate. We will also walk you through other estate planning options based on your needs. Call us at 407-622-1395 to schedule a consultation. 

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Living will

What is a living will?

One aspect of estate planning is advanced directive documentation. Advance directives are written preferences for medical care when you are unable to make medical decisions independently. One important advanced directive is a living will. A living will specifies your desires for medical treatments if you are unable to communicate your desires. Read to learn more about living wills and how to create one as part of your estate planning documentation. 

What is a living will? 

A living will establishes someone’s wishes for medical care and treatment if they cannot communicate their needs. Typical situations where a living will may be beneficial are in a coma, badly injured, terminally ill, or in the late stages of dementia. In addition, having a living will helps your loved ones make better medical decisions on your behalf.  

Elements of a living will 

There are several elements you should include in a living will. You will want to think about particular treatments and procedures you are willing to undergo and which ones you are not. Also, it is essential to think about your desires when you are nearing the end of your life. Do you value life preservation or self-sufficiency? Do you want specific treatments based on your prognosis? Answering these sometimes difficult questions will lead to better decisions in the future. 

Preferences for medical treatments 

 You will want to specify your desires regarding the use of life support equipment like feeding tubes, ventilators, and dialysis in your living will. If you wish to have this type of equipment used, you will want to specify the duration you would like to remain on life support equipment. 

Pain management 

You should include your preferences on antibiotics and antiviral medications in your living will. You can also specify your preferences regarding hospice care and comfort when facing a terminal diagnosis. 

Organ donation

If you wish to donate your organs, it’s advisable to include this in your living will. You can also specify whether you want to donate your body to science. 

Do Not Resuscitate and Do Not Incubate orders 

While Do Not Resuscitate (DNR) and Do Not Incubate (DNI) orders are typically specified in your medical records, you can also include this information in your living will. However, make sure your health care physicians are aware of these orders so they can add the information to your medical file. 

Creating a living will 

In Florida, a living will must be signed by the person seeking treatment and two witnesses. One witness cannot be a spouse or blood relative. While it’s not necessary for a living will to be notarized in Florida, it is beneficial. Once a living will is created, you’ll need to send copies to your medical care team, and you should also keep a copy for yourself in a safe place. Also, discuss your living will and desires for medical treatment with your family so everyone is on the same page.

Choose the Boutty Law Firm for estate planning

A living will is one aspect of your estate planning documentation and should be updated every ten years. At the Boutty Law Firm, we assist clients in all aspects of estate planning, including creating legally binding living wills and last wills. We serve all of Central Florida. Visit our office in Maitland, or call 407-622-1395 to schedule a consultation. 

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estate planning

The Executor’s Role During Probate

The executor serves a critical role in the probate process. An executor acts as the main point of contact between the grieving family and the probate court and manages the estate during the probate process. Whether you are determining who should be your estate’s executor, or you were appointed as the executor of someone else’s Will, it is essential to understand the key roles and responsibilities an executor holds during the probate process. 

Naming an executor 

The executor has many responsibilities and serves a significant role within the probate process. The executor must be responsible and ensure the deceased’s last wishes are carried out in ordinance with the will and the law. They must also be able to solve problems when issues regarding the estate come up. Due to the immense duties the executor performs, it is essential to discuss your intentions with the person you choose when creating your will.

Executor’s responsibilities 

Once a death certificate, will, and other documents are presented to the probate court, the executor will be given legal authority to execute the will. Below are the primary responsibilities an executor will be in charge of during the probate process.

Liaison between family and probate court 

After the will is validated, the executor will become the primary contact between the probate court and the family, asking questions, attending meetings, and resolving issues. Therefore, it is crucial to choose an executor who is a close family member or friend who can communicate with the probate court and family members.  

Notify beneficiaries and creditors 

Beneficiaries have the right to know that they were included in someone’s will and it is the executor’s responsibility to inform them. After beneficiaries are notified, the executor will also tell creditors and agencies about the person’s passing. This may include credit card companies, lenders, government agencies, and financial institutions. Creditors will submit claims on the estate if they are owed funds from the deceased. During this time, the executor should also establish an estate bank account.

Manage and protect the estate 

The executor is in charge of assessing the estate’s value, including personal assets, real estate property, and bank accounts. They must provide the probate court with an inventory of assets to determine the entire estate’s value. The executor will also keep the deceased’s property safe before distribution to beneficiaries. All debts and credits must be paid before assets are distributed, and the executor will ensure they are not distributed prematurely. Executors are also in charge of the care and maintenance of the deceased’s property, including maintaining landscaping and paying bills. 

Disperse funds to beneficiaries 

Once the estate’s value is assessed, the executor manages the distribution of funds to creditors, then to the beneficiaries. Executors may be held personally liable for fund mismanagement during probate, so executors must be able to follow all instructions. The executor uses the funds in the estate account to pay expenses like funeral and burial costs, credit card debts, and owed taxes. The executor is also in charge of filing the deceased’s final tax return. 

The Boutty Law Firm: experienced probate attorneys 

In the state of Florida, executors should seek counsel from a probate attorney when handling a deceased’s estate. The Boutty Law Firm and its experienced probate attorneys provide thoughtful guidance for executors during the probate process. Call our office at 407-622-1395 to speak with a probate lawyer today. 

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