It is possible that when a person dies, all assets are transferred by operation of law based on beneficiary designations or through joint accounts with rights of survivorship or similar designations that transfer assets automatically upon death.  However, if an asset is held individually without a beneficiary or pay on death designee, the probate process will be necessary to transfer the title to the asset.   The probate process will also be necessary for assets where the named beneficiary predeceased the decedent.  In this case, the asset will be paid to the estate.

 The benefit of a will is simply for the testator or testatrix to give his/her final wishes for who should be personal representative (executor) and how the assets should be transferred in the probate process.  If a person dies without a valid will, Florida law will determine these issues.  However, for a will to have effect, it must be admitted to probate through the probate administration process.     

 If you have questions about whether or not the probate process will be necessary, do not hesitate to contact the Law Office of Silverman, Mack & Associates to speak to one of our knowledgeable attorneys about your case.   You can reach us toll-free at 800-871-8454.

 Under Florida law, any person who is of sound mind and over the age of 18 years old may make a Last Will & Testament (“Will”).  A Will can specify who should be appointed personal representative (executor) and how the assets should be distributed.

 The most important factor in determining whether or not a party’s Last Will & Testament is valid in Florida is whether or not the Will has been validly executed.  Every Will must be signed at the end by the testator or by someone else in the testator’s presence and at the testator’s direction and the testator must execute the Will in the presence of two attesting witnesses.  The witnesses and the testator must execute the Will in each other’s presence.  

 While the execution of a Will is crucial to its validity at a later date, there are additional steps that can be taken to simplify the probate process.  For example, a “self-proof affidavit” may be added to the end of the Will.  The self-proof affidavit, if properly drafted and executed, will mean that the Will can be admitted to probate without further proof or proceedings.  If a Will does not contain a self-proof affidavit, the Will can be admitted to probate only after the oath of an attesting witness.  In other words, in the absence of a self-proof affidavit, you will need to find a witness to the Will to authenticate the Will before it will be admitted to probate.  Frequently, it is difficult and costly to locate witnesses to a Will that may have been executed decades earlier.  As such, it is important to contact a knowledgeable attorney to make sure that your Last Will & Testament is properly drafted and executed.     

 Furthermore, an experienced attorney can diminish the likelihood of a later Will contest by making sure that the execution formalities are properly conducted and the witnesses will be able to recall the circumstances surrounding the execution at a later date, if called to testify.  

 If you are ever in possession of an original Will, it should be submitted to the Clerk of Court in the county where the Deceased last resided within ten (10) days of death.  If you have any questions regarding how to proceed with the probate process, do not hesitate to contact the Law Office of Silverman, Mack & Associates to speak to one of our knowledgeable attorneys about your case. You can reach us toll-free at 800-871-8454.

A formal administration is required for large estates and for estates that require a personal representative (executor) to act on behalf of the estate.  A formal administration may take up to a year to complete.  However, there are many benefits to a formal administration that do not apply to other forms of probate administration.

Small estates will often qualify for summary administration if the inventory value is less than $75,000.00.  Usually, a summary administration is preferable when the estate qualifies because summary administration takes less time than a formal administration.  However, there are times when a summary administration will not be adequate, even for a small estate.  If a personal representative is needed to conduct business or act on behalf of the deceased, a formal administration will be required.  Other times, it may be necessary to do a formal administration to deal with creditor claims.

When an individual resides outside the state of Florida but dies owning property in Florida, there are many different forms of ancillary administration that can transfer the title to Florida property.  In this instance, the relevant inquiry will be whether or not the out of state decedent had a valid will and the value of the property.       

If a probate is necessary but you are unsure what form of administration is most appropriate for your matter, contact the Law Office of Silverman, Mack & Associates at 800-871-8454 and one of our experienced attorneys can assist you with your case.  

In order to amend a death certificate, an application to the Bureau of Vital Statistics will be required.  Different procedures are required to amend a death certificate depending on what information has been inaccurately reported or omitted.  For example, sometimes for minor errors, an affidavit is the only documentary evidence required.  Other times, you may need to provide documentary evidence or you may need to get a court order directing the Bureau of Vital Statistics to amend the death certificate.   If a court order is required to amend the death certificate, a civil case is required before the probate can be filed.

When in doubt, an informant (those giving the Decedent’s information to the funeral home) should never guess as to information reported on the death certificate.  Information that is inaccurately reported may seem insignificant but end up costing the loved ones financially, and delay the probate in order to get the issue resolved.  If you have any questions regarding the need to amend a death certificate, do not hesitate to contact the Law Office of Silverman, Mack & Associates to speak to one of our knowledgeable attorneys about your case. You can reach us toll-free at 800-871-8454.

New Year’s Resolution: Draft a Will

Creating a Will is something everyone should do, no matter how little or how much you own. And because you never know what tomorrow will bring, it's never too early to put your wishes on paper.

If you die without a valid Will, you forfeit any direction in how your possessions and estate will be divided. For those with few possessions, do you really want the State to gain ownership rather than a surviving family member, friend or charity? And when considering those who own properties, multiple bank accounts, bonds, stocks, investments, retirement funds, etc., it is unfathomable to probate lawyers such as ourselves when those individuals fail to provide a plan for their assets.

One infamous holiday character is not known for planning although he is known for his fiscal acumen: Ebenezer Scrooge. "A Christmas Carol" by Charles Dickens is a wonderful classic enjoyed year after year. At our probate law firm, it isn't too far fetched to wonder, in the midst of holiday sharing, goodwill and cheer, if things might have been different for Ebenezer Scrooge had he put his frugality to good use and constructed a Will.

For those who are not familiar with this tale, you can read it in its entirety at literature.org. For those who need a refresher: Ebenezer Scrooge is the main character who has taken for granted his sole remaining family member (his nephew Fred), as well as his employees and everyone around him, in his bitter old age. However, through the meeting and interaction with his now-deceased ex-partner Jacob Marley and three other Spirits, Scrooge’s heart of coal warms to the flicker of humanity.

The Power of a Will

So, could Scrooge have avoided the shocking scene with the Ghost of Christmas Future played out in Chapter 4, "The Last of the Spirits", by simply visiting a probate law firm and drafting a Will? It's possible, and here's why.

When you draft a will, there is really only one main purpose: figure out what is going to happen with all of your "stuff" (or assets and properties). For a majority of our clients, that means taking inventory of assets and debts, and then determining which heirs and beneficiaries should receive the assets.

For someone like Scrooge who only has one heir, it's likely that Fred would inherit everything, but only if Scrooge had a Will! Otherwise, the State would act, and depending on the type of probate administration, Fred may only receive a few assets or none at all.

Of course, it's possible that Scrooge, in his curmudgeonliness, would write-off Fred and Fred's wife in an instant. Scrooge certainly had no problem doing this at the beginning of the tale with a "Bah! Humbug!" to Fred's "Merry Christmas". But, who's to say the Will could not turn into a savior of Scrooge in a very different type of "Tell-Tale Heart" — with the Will sitting on Scrooge's shelf, day after day, Scrooge would be forced to reconcile his actions. Could Scrooge go on living knowing he left his nephew nothing? Would he resolve to revise the Will one day when his heart felt lighter and perhaps its icy exterior had melted?

It's true that it took quite the effort of four Spirits for Scrooge to see the error in his ways and that he was truly happy before and could be happy again if he allowed himself to be. Although he trembled in the presence of Marley, once the Spirit had left, Scrooge was ready to forget the phantoms for good. And when the second Spirit was scheduled to appear, Scrooge readied himself "to challenge the Spirit on the moment of its appearance." This determined old guy was not backing down!

At the end of the visit with the Ghost of Christmas Present, however, Scrooge was not so defiant. By this time, he had seen the Christmases of long ago, watched his love turn sour and had gazed upon his only remaining family laughing at his expense. Yet to come is Scrooge's realization that, if he does not change the present, a frightful future of a town rejoicing in his death was sure to play out.

It is no small feat that Dickens' character evolved due to the interference of the Spirits and what they showed him. But is it not possible a similar ending could be gained from a different story entirely?

When faced with our own mistakes in judgment, staring down our embarrassments and lapses in humanity, we often find our own truths. Perhaps not even the greatest of probate lawyers could convince Scrooge to share his wealth, but maybe, just maybe, the ticking embodiment of all his hatred, disappointment, morosity, indifference and indignation could have allowed him to see that if you push others away while you're alive, there's nothing to keep them close after you're gone.

Contact a Probate Lawyer Today

So, this holiday season, whether you find yourself aligned with Fred's cheerful disposition and love for the hustle-and-bustle, or you prefer to lock yourself away from the 24-hour Christmas music while muttering "Bah! Humbug!", take some time to evaluate your own Christmas Past, Present and Future, and contact the Law Offices of Silverman, Mack & Associates to draft your Will.

“And so, as Tiny Tim observed, God Bless Us, Every One!”

What is Financial Exploitation?

In the State of Florida, Chapter 825.103 of the Florida statutes defines exploitation of finances as knowingly obtaining or using, or attempting to obtain or use, an elderly person’s or disabled adult’s funds, assets, or property with the intent to temporarily or permanently deprive such person of the use, benefit, or possession of their assets. The exploitation must be used to benefit somebody other than the elderly person or disabled adult and must be committed by a person in a position of trust and confidence with the victim or in a business relationship. Financial exploitation occurs without the explicit knowledge or consent from the victim.

How Do Exploitation & Theft Occur?

Assets are usually stolen or misused through forms of deception, false pretenses, coercion, harassment, and threats. The best way to ensure that you or someone you love is not being exploited is to keep a close eye on all accounts and expenses and to probe them. Ensure that all investments are secure and appropriate, and that assets are well protected. Children or trusted family members are often the culprits who are stealing assets from their elderly or disabled family members. Greedy financial planners or mortgage brokers can also be predatory by seeing vulnerable adults as an opportunity for high-commissions or inappropriate mortgages. Certain annuity salespeople may also try to push risky investments on unsuspecting clients, so you must always stay alert or have someone help you when making decisions of that magnitude regarding your finances and assets.

Warning Signs of Financial Abuse

Some of the most common signs of financial and asset exploitation include:

• Sudden or unusual changes in your bank account or banking practice.
• Unauthorized withdrawals of large sums of money under your ATM card.
• Abrupt changes in your will or financial documents.
• Disappearance of valuable possessions or funds.
• Unpaid bills despite sufficient financial resources to pay them.
• Discovery of your signature being forged for financial transactions or for titles of your possessions.
• Sudden transfers of your assets to a family member without your consent.

What to Do if You Have Been a Victim of Exploitation

If you discover any warning signs of theft or exploitation of your assets or of a loved one’s assets, immediately seek the help of probate lawyers Gainesville elders and adults with disabilities can trust. Missing or reduced assets can greatly affect you and cause complications during the probate process. An attorney will have the necessary experience and financial knowledge to help you recover your lost finances and assets. In Florida, the exploitation statute has made it much easier to pursue, charge and convict predators who steal from or exploit elderly or disabled adults.

Gainesville, FL Probate Lawyers

At The Law Office of Silverman, Mack & Associates, we believe in protecting citizens from theft and exploitation. Our probate attorneys are highly skilled to protect your rights and look out for your best interest. Contact us today for probate lawyers in Gainesville you can rely on.