Understanding Probate and Why It's Important

May 17, 2024

Understanding Probate and Why It's Important


Probate is a legal process that takes place after someone passes away. During this process, a court will oversee the distribution of assets from the deceased person's estate to their heirs or beneficiaries. This can be a lengthy and expensive procedure that often leaves families feeling overwhelmed. It's important to understand probate because it can have significant consequences for your loved ones if you don't plan ahead. Without proper planning, your family may face unnecessary expenses, delays, and stress during an already difficult time.


How a Will Can Help Avoid Probate


One way to avoid probate is by creating a will.  A will is a legal document that outlines how you want your assets distributed after you pass away.  By having a clear plan in place, you can help ensure that your wishes are carried out as intended without going through probate. Creating a will also allows you to name an executor who will manage your estate according to your wishes. This person can be responsible for paying off debts, distributing assets, and handling any other necessary tasks related to settling your estate. While creating a will won't completely eliminate the possibility of probate (there may still be some assets that need to go through this process), it can greatly simplify things for your loved ones during what is sure to be an emotionally challenging time.


The Benefits of Hiring an Elder Law Attorney in Melbourne, FL


If you're considering creating a will or other estate planning documents but aren't sure where to start, hiring an elder law attorney in Melbourne, FL could be beneficial. At Rhodes Law, P.A.. we specialize in helping you navigate the complex legal issues related to aging and estate planning. We can help you create a will that meets your specific needs and goals. We  can also assist with other estate planning documents, such as trusts or powers of attorney. By working with Rhodes Law, P.A., you can have peace of mind knowing that your wishes will be carried out as intended. In addition to helping you avoid probate, an elder law attorney can also provide guidance on other legal issues related to aging. This may include things like long-term care planning, Medicaid eligibility, and guardianship proceedings.


Contacting an Elder Law Attorney to Create a Will and Avoid Probate


If you're ready to take the first step in creating a will or other estate planning documents, it's time to contact Rhodes Law, P.A.. We have the knowledge and experience needed to guide you through this process and ensure that your wishes are carried out after you pass away. Don't wait until it's too late – start planning for the future today by calling us at (321) 610-4542!


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Can Anyone Contest a Will or Trust?

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Yes, someone can contest a will or trust , but there are legal requirements and limitations. Here's a breakdown: Who Can Contest a Will or Trust? Generally, only people who have legal standing can contest: Heirs (like children or spouses) Beneficiaries named in the current or prior versions of the document Anyone who would inherit under intestacy laws if the will/trust were invalid Common Grounds to Contest A person must show legal reasons. Common grounds include: Lack of capacity The person who made the will/trust wasn’t mentally competent at the time. Undue influence Someone pressured or manipulated the person into changing their estate plan. Fraud The will/trust was signed based on lies or deception. Improper execution The document doesn’t meet legal requirements (e.g., not properly witnessed). Forgery The signature is fake or the document was altered. Time Limits (Statutes of Limitations) Timeframes vary by jurisdiction: Wills : Often must be contested shortly after probate starts (e.g., 30 to 120 days). Trusts : Deadlines can vary, often triggered when a trustee notifies beneficiaries. What Happens If a Contest Succeeds? The court may declare the will/trust invalid. The estate may pass according to a prior valid will or state intestacy laws. Note on "No-Contest Clauses" Some wills/trusts have a "no-contest clause" (also called in terrorem clauses). These threaten to disinherit anyone who contests the document—unless they have probable cause . Not all states enforce these clauses. If you think you have a reason to contest a will or trust, it’s best to speak to a probate or estate attorney right away—deadlines can be strict, and the process is legally complex. To learn more, call Ruth at Rhodes Law, P.A. at 321-610-4542 and schedule your consultation!

What does one do if a loved one has passed with no will or trust?

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When a family member passes away without a will or trust (called dying intestate ), their estate is distributed according to the laws of the state they lived in. Here's a general step-by-step guide on what to do: 1. Get a Legal Pronouncement of Death: If it hasn’t been done already (e.g., at a hospital), a medical professional must pronounce the death legally. You’ll need this to obtain a death certificate. 2. Obtain Death Certificates: You'll need multiple certified copies (10–15 is common) for banks, insurance, property titles, etc. These are issued by your local vital records office or funeral home. 3. Determine the Estate's Executor or Administrator: If there’s no will, the probate court will appoint an administrator (usually the next of kin). You can petition the court to become the administrator if you're a close family member. 4. File for Probate - Probate is the legal process of settling the estate: Go to the probate court in the county where the deceased lived. File a petition for probate without a will . The court will appoint an estate administrator and officially open probate. 5. Notify Heirs and Creditors Send formal notice to all potential heirs and beneficiaries. 6. Identify and Inventory Assets - This includes: Bank accounts Real estate Vehicles Retirement accounts Personal belongings Some assets may pass outside probate if they have named beneficiaries (like life insurance or POD accounts). 7. Pay Debts and Taxes Use estate funds to pay valid debts and taxes. File the deceased’s final tax return . 8. Distribute the Remaining Assets: Once debts and taxes are settled: The court will distribute assets according to state intestacy laws , usually prioritizing: Spouse and children Parents and siblings More distant relatives if no close family 9. Close the Estate: After all duties are fulfilled, submit a final accounting to the court. If approved, the estate can be officially closed. Consider Talking to a Probate Attorney: Especially if: The estate is large or complex There’s family conflict You need help with legal paperwork Book your consultation with Ruth C. Rhodes of Rhodes Law, P.A. and let Ruth share her knowledge and experience in helping you with planning to meet your individual and family needs. With a commitment to excellence in Elder Law, she stands ready to assist clients at every stage of life, ensuring their rights and wishes are fully protected. So, call us at (321) 610-4542 and schedule your consultation today!

Medicare and Medicaid...What's The Difference?

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Medicare and Medicaid are both government-run health insurance programs in the U.S., but they serve different groups and are funded differently: Medicare - Who it's for: Primarily for people 65 and older, and some younger people with disabilities or end-stage renal disease. - Funded by : Federal government , through payroll taxes, premiums, and general revenue. - Coverage : Includes hospital care (Part A), medical services (Part B), and optional prescription drug coverage (Part D). Private Medicare Advantage plans (Part C) are also available. Medicaid Who it's for : People of any age with low income , including children, pregnant women, elderly adults, and people with disabilities. Funded by : Jointly by federal and state governments. States run their own programs with federal guidelines. Coverage : Broader than Medicare in many cases, often including things like long-term care, dental, and vision services. In short: Medicare = Age-based or disability-based, federal program. Medicaid = Income-based, state and federal program. Medicaid is usually low-cost or free , but costs can vary depending on your state, income, and the type of services you use. Here's a general breakdown: For Most People No monthly premiums Very low or no copays No deductibles In Some States Higher-income enrollees (still within Medicaid limits) may have: Modest monthly premiums (typically under $50) Small copays (often $1–$4 per visit or prescriptions For Long-Term Care (like nursing homes) Medicaid may require you to spend down assets or contribute most of your monthly income toward your care, depending on your financial situation. Special Programs: Children (CHIP or Medicaid) : Often completely free. Pregnant women and people with disabilities : Usually receive coverage with little to no cost. Engaging in Medicaid planning well in advance can significantly enhance peace of mind for individuals and their families, ensuring they make informed decisions that align with their long-term goals. Legal and financial advice may be needed to effectively manage an individual’s estate. Creating trusts, gifting assets, or employing spend-down strategies are often utilized to align with Medicaid’s requirements. At Rhodes Law, P.A. , Ruth will advise you how to qualify, obtain and maintain Medicaid benefits. Call our office at (321) 610-4542 and schedule your consultation today!
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