GAPS Legal, PLLC
Frequently Asked Questions
Helping You Bridge The GAPS of Life
Guardianship & Guardian Advocacy FAQs
What will it cost to establish a guardianship?
There is no concrete answer as each case is different. Filing fees to open the court case start at $232. This does not include attorney’s fees.
How is a guardianship different from a guardian advocacy?
Both are court proceedings but do have important differences. Please click here to see our comparison chart.
Probate FAQs
How long does probate take?
It varies from case to case. The Florida State Courts System guidelines are:
- Uncontested, no federal estate tax return – 12 months (from issuance of letters of administration to final discharge)
- Uncontested, with federal estate tax return – 12 months (from the return’s due date to final discharge)
- Contested – 24 months (from filing to final discharge)
Special Needs FAQs
My child is off to college or work after turning 18. What does my child need?
Remember, when your child reaches 18, he or she is an adult who can make his or her own decisions. Mom and Dad have very limited ability to intervene without the child’s consent. It is recommended that upon turning 18, each child sign a Durable Power of Attorney, Health Care Surrogate Designation, and Living Will.
Why?
If your child should be in an accident or suffer a major illness, these documents may avoid court proceedings.
What happens if my child doesn’t sign advance directives?
That depends on what your child requires in terms of financial or medical assistance. If your child suffers a major trauma that will involve a lawsuit, public benefits, or any other property matters, the court will need to appoint a guardian. The court will dictate how funds are spent to take care of your child’s needs. If your child needs medical consents or treatment and is not married, 1 parent can make the decision. It may not be the parent the child would choose or the parents may disagree. If the parents disagree, it could require the court to appoint a guardian to make medical and personal decisions.
My child will be 18 and has special needs. How do I plan?
This will depend on your child’s special needs.
Can your child make reasoned decisions?
If yes, then consideration should be given to him or her signing a Durable Power of Attorney, Health Care Surrogate Designation, and Living Will.
Does your child need support to make decisions?
Consider including a supported decision-making agreement in your planning to meet the individual’s needs. The plan is a voluntary agreement between an individual and those who will provide support. The plan is complementary to other advance directives, allows autonomy, and may avoid the need for guardianship.
Will your child cooperate with the provision of necessary services to ensure his or her safety and health?
If yes, appointment of a Guardian Advocate may be appropriate. This requires court proceedings and oversight.
If no, court proceedings may be necessary to determine incapacity and appoint a guardian.
Estate Planning FAQs
What can you expect when considering estate planning documents for you or your child?
Each attorney will ask about your family and what you want for your life. During the discussion, be prepared to answer questions with regard to your medical and financial needs now and in the future. The questions may evoke many emotions, but it is important to plan effectively for everyone’s futures.
What are Advance Directives?
The most common advance directives are a Durable Power of Attorney, Health Care Surrogate Designation, and Living Will. It can also include a Pre-Need Guardian designation. These documents will provide decision-making authority for designated individuals if you are no longer capable of making decisions on your own.
What is a Durable Power of Attorney?
The document names an individual to take care of all financial matters.
What is a Health Care Surrogate Designation?
The document names the person to make your medical decisions when you can’t or need assistance.
What is a Living Will?
This document states in writing what your wishes are with regard to end of life treatment.
What is the cost of Advance Directives?
The cost will vary depending on your needs. Please call our office at (954) 315-4801 to schedule a consultation.
What if I do nothing?
If you suffer a major injury or are no longer able to care for yourself, the court will appoint someone to make decisions on your behalf in the event that you are no longer able to.
Where is the best place to keep my signed original estate planning documents?
The best place is probably a safe deposit box because it will protect the documents from theft, fire, accidental loss, and most other types of damage or harm. A potential problem, though, is getting it opened after your death. If you decide to keep your estate planning documents in a safe deposit box, consider naming someone to access the box as a joint holder.
I don’t have a safe deposit box, do I need one?
Many people keep important documents at home in a secure place. If you have a safe at home, that can be a good place to keep them. Be aware though, when thieves enter your home and discover a locked safe, they often take the whole safe thinking they’ll find cash and jewelry. The last thing they want is a file containing your estate planning documents, but that’s one of the things they’ll get if you keep them in your safe. Therefore, unless your safe is bolted to the foundation of your house, it may not be the best place to keep your originals.
More people than you would expect keep original Wills and other estate planning documents in an air-tight plastic bag at the bottom of their freezers. Freezers are well insulated and heavy, and have a way of withstanding fires, hurricanes, and tornadoes. Also, they don’t die or move away, and they are stolen far less frequently than in-home safes.
Should I give copies of my Will and other estate planning documents to someone else?
For some people, estate planning documents are as private as their income tax returns, and nobody is ever given copies. For other people, estate planning documents are no different than a spare key to the house, and anyone who might need a document is given a copy. If you are the type of person who values your privacy or have made decisions that your children may not like, it may not be a good idea to hand out copies. Also, you may have more money than your children expect, and depending on how your Will or Trust is written, giving them a copy may be letting them know too much about your personal business. On the other hand, if you have a fairly open relationship with all of your children, you regularly discuss finances with them, and you are leaving your estate to them in equal shares, then it’s likely safe to give everyone a copy. Of course, if you decide to change your Will or Revocable Trust, you should be sure to give all of the same people copies of the new documents. If you don’t, then there may be some arguments following your death over which document controls the disposition of your estate.
If someone’s Will is in a safe deposit box at a bank when they die, how do you get access to it?
The easiest way is if another person is named as a joint owner of the safe deposit box. That person can retrieve the Will with no problems or delays. Another option is to go to court to request that a judge order an examination of the box. If a Will is found, it will be sent to the court. This should be the option of last resort because it takes longer, requires the filing of papers with the court, and usually involves a lawyer and associated legal fees.
What gifts can I make without having to pay gift taxes?
It changes every year. For 2020, the amount is $15,000 per person. Gifts can be in the form of cash, stocks, bonds, real estate, or anything else of value. But be careful; if the gift is for someone that might be receiving needs-based government benefits, the gift may jeopardize those benefits or cause a period of ineligibility.
For whom are most trusts appropriate? What are the pros and cons?
Living trusts, sometimes called revocable trusts, are useful estate planning tools and have an important place in many people’s estate plans. If you find any one of the following benefits appealing, then a living trust may be appropriate for you.
Benefit #1: No probate. When a person dies, most properties pass either under a person’s Will or the Trust. Some properties, such as life insurance, IRAs, and certain types of bank and brokerage accounts, pass directly to named beneficiaries. If property passes under a Will, then the Will must be probated at the courthouse. Probate entails hiring a lawyer, filing a number of papers with the court, attending one or more hearings, and providing a written inventory to the court valuing the properties which passed under the Will. Some people don’t want this type of involvement with the court, so they opt for a Trust. By transferring all properties to the Trust, you can avoid the probate proceeding. For estates which owe no estate taxes, there is usually less work for the lawyers, and that translates into reduced estate administration costs. Court involvement is not eliminated entirely, however. Florida requires the Trustee to file a Notice of Trust with the appropriate court containing information about the person who created the trust and the trustee. Also, in certain circumstances, the trustee may be required to pay expenses of administering the decedent’s estate as well as handle the claims of creditors against the decedent’s estate.
Benefit #2: Plan for Future Incapacity. You may be worried that one day you won’t be able to manage your own finances and want to name someone to handle these matters if that happens. You can address this potential problem with a durable power of attorney and a Trust. A durable power of attorney will usually be accepted by banks, title companies and the like, but there is always the risk that an institution’s legal department will reject it. That can result in litigation.
Benefit #3: Harder to Challenge. If you are planning to disinherit one of your children or grandchildren, you may be better off with a Trust because there is nothing filed at the courthouse. Also, it is a little harder to contest a Trust than a Will. Many people are interested in doing as much as possible to prevent a successful challenge to their estate plan.
Benefit #4: Avoid Out-Of-State Probate. If you own property in another state, you can avoid a costly probate proceeding in that state by transferring the property to a Trust. Before you establish a Trust, you need to understand the downsides, which include the following:
Disadvantage #1: Time-Consuming To Set Up. Depending on how many different types of properties and accounts you own, it can take quite some time to switch everything over to the name of your trustee.
Disadvantage #2: Complicated. Wills are usually shorter and simpler to understand than Trusts. Also, with a Will, you can sign it and forget about it for the most part. But with a Trust, you need to put your property into the Trust and run your life out of it for as long as you live. For many people, this downside outweighs all the potential benefits.
Disadvantage #3: Time-Consuming to Revoke. A year after you set up the Trust, you may decide you don’t want it anymore. At this point, you will need to return to every bank and brokerage house and undo everything you had done to establish the trust. You can expect more lawyers’ fees too.
Disadvantage #4: Post-Death Costs Not Eliminated. If you have a taxable estate there will be a lot of work to be done after death regardless of whether probate is required. Typically, there are tax returns to file, trusts to establish, assets to value, and more. Avoiding probate will only marginally reduce the cost of administering a taxable estate.
Disadvantage #5: May Still Need to Probate Will. If you leave just one bank account or one piece of real estate out of the Trust, probate will still be necessary and probate takes about as long when there is one asset as when there are twenty.
Which assets are handled outside of probate?
There are a number of different kinds of properties that may pass outside the provisions of your Will. The list includes life insurance, retirement plans, individual retirement accounts, and annuities if you have a named beneficiary. When you purchased or set up these types of assets and accounts, you were probably asked to fill out a form listing the beneficiaries who will receive payments upon your death. These investments will pass to the named beneficiaries regardless of whether you have a Will. However, if you don’t have a beneficiary named, if the beneficiary is your “estate,” or if all the beneficiaries are dead, then those investments will be paid to your estate and pass under your Will.
Certain bank and brokerage accounts will also pass outside your Will. For instance, payable-on-death accounts (sometimes called “POD” accounts) will be distributed to the named beneficiary. Additionally, accounts setup by one or more persons as joint tenants with rights of survivorship will pass to the surviving account holder or holders.
Some banks allow you to setup what they call trust accounts even though there is no written trust agreement. These types of accounts will pass to a named beneficiary without going through probate as well.
Not all joint accounts pass to the survivor. When joint accounts are set up as tenants in common, the portion of the account that was owned by the decedent passes under his or her Will.