<![CDATA[Orlando Probate & Estate Administration Law Blog]]> tag:www.korshaklaw.com,2013-03-21:/blog/69430 2019-07-08T20:20:35Z Movable Type Enterprise <![CDATA[How long does probate last in Florida?]]> tag:www.korshaklaw.com,2019:/blog//69430.3785813 2019-07-08T20:21:35Z 2019-07-08T20:20:35Z It is a widespread belief that probate essentially takes forever to complete. But is this true? The truth is that the duration of the probate process depends on a variety of factors, including whether there is a will, the complexity of the assets, the number of beneficiaries and whether there are any disputes.

In Florida, there is a creditor claim period of three months, so that is the shortest the process can take. That said, some estates may take several more months or even years to probate. 

]]> Leaving a will or dying intestate

If the decedent leaves a will, it makes the probate process much more efficient from the start. But there can be plenty of hangups if there is no will. The estate will still need to go through probate, but the court will have to manage it according to state intestacy laws. When there is no will, the judge will also need to designate an executor. 

Simple or complex assets

If an estate consists of basic assets, such as bank accounts and a house, the probate is likely going to be relatively straightforward. But if there is significant wealth in the estate and other complicated assets, such as multiple properties and business interests, the administration process tends to drag out. 

Number of beneficiaries

The number of heirs to the estate directly impacts how much time it takes to get things done. This is because of the simple fact that it takes more time to transfer documents back and forth among various individuals who may live in different locations. 

Disagreements and disputes

Disappointments about the outcome of a will and long-held family grievances can complicate the probate process. Beneficiaries who fight with one another can prolong the process. There may even be a will contest, which happens when a beneficiary challenges the validity of the document. Beneficiaries may even try to remove the executor. Arguments and legal claims can cause probate to take years to finish.

<![CDATA[3 examples of probate disputes]]> tag:www.korshaklaw.com,2019:/blog//69430.3777879 2019-06-25T21:21:34Z 2019-06-25T21:20:34Z The probate process can be a trying experience for anyone involved. Not only are you grappling with the grief over your lost loved one, but tensions can build as family members disagree over the handling of the estate.

Probate disputes can drag out the length of time it takes to distribute assets. As arguments wear on, it is easy to become impatient. Here are three of the most common disputes you may encounter as you start the probate process.

]]> 1. Unqualified executor

Typically, the deceased will have designated an executor prior to his or her death, and this person will be the primary administrator of the estate. An adult son or daughter is a common choice, but sometimes it is not the most appropriate.

The executor needs to have organizational skills and must be willing to apply a fair and impartial approach to the processing of the will. If beneficiaries believe the executor is doing a poor job or using personal vendettas to justify decisions, then family may attempt to remove the person from the role.  

2. Coveted assets

A big-ticket asset, such as the family home, can be a source of much dispute during probate. The terms of the will may be unclear, prompting several family members to stake a claim on it.

Furthermore, siblings may disagree on the intention for the home. One may wish to sell it in order to use the profits, while another may want to keep the house in the family for the next generation. When you have a coveted asset combined with an unqualified executor, the disputes can get especially ugly.

3. Contested will

Even with a detailed will in place, it is possible to contest the document if you suspect something is off about it. Many things may have occurred during the writing of the will that may invalidate it in the eyes of a judge.

For example, someone may have coerced your loved one into agreeing to certain terms, or he or she was not mentally capable of making decisions at the time. Families may also contest a will that is years out-of-date, but this can be a bigger challenge to overcome.

If you are gearing up for probate following the death of a family member, prepare yourself for potential disputes along the way. If you have doubts about the executor or specific demands seem fishy, it can help to have legal counsel on your side.

<![CDATA[What happens if you die before creating a will?]]> tag:www.korshaklaw.com,2019:/blog//69430.3764816 2019-06-10T18:31:34Z 2019-06-10T18:30:34Z These days, Americans are undeniably busy, and in many cases, this can lead them to “put off” certain important actions, such as creating a will. You would be remiss to delay crafting this critically important document, however, as dying without one could lead to a wide range of issues.

Drafting a will gives you a clear opportunity to make your wishes known and dictate what you would like to happen to your children, finances and so on after your death. If you fail to make one, though, the state of Florida assumes control over these and related issues, and your beneficiaries can be the ones who lose out.

]]> So, what types of problems and issues can you encounter in the event that you die “intestate,” or without a will?

Heir issues

If you do not use a will to dictate how you want to distribute your wealth once you pass on, the state will need to do so for you.

In Florida, a substantial portion of your estate will typically go to your spouse, if applicable, but the amount of that spousal share will depend on whether you have other children who are not the children of your current spouse. Creating a will gives you an opportunity to make your own decisions with regard to your wealth and distributions.

Custody issues

A will gives you an opportunity to stipulate who you want to serve as a guardian over any minor children you may have, and it also grants you a chance to express other wishes you may have with regard to their raising. In the absence of a will, the responsibility of naming a guardian falls on the state, so creating a will is an important step in maintaining control over these matters.

Opting not to create a will can also have important tax ramifications, among others, so creating one is a critical step for people wishing to express their wishes for the future while they are still around and able to do so.

<![CDATA[The importance of identifying probate and non-probate assets]]> tag:www.korshaklaw.com,2019:/blog//69430.3756268 2019-06-03T16:01:35Z 2019-06-03T16:00:35Z Estate planning in Florida is a vital form of financial planning for controlling the transfer of property and wealth within families. In this day and age, one cannot rely on verbal promises when death or incapacitation occurs. Grief has a way of bringing out negative feelings and creating conflict that can negate the final wishes of the deceased. 

When planning your estate, it is important to inventory your tangible and nontangible assets, even those with joint ownership. Failure to title all assets properly, not using the arsenal of estate planning tools available and relying solely on a will can result in some of your property ending up in the hands of the wrong people.

]]> One way to avoid challenges to your estate plans and preserve your intentions is to know the difference between probate and non-probate assets to help streamline the time it takes to settle your estate.

Probate court oversees the transfer of certain assets

First, you must understand that probate is a process that an estate must go through when a person dies. The role of probate court is to ensure the payment of debts and estate taxes and to pass down the remaining proceeds to the heirs.

The probate process is a lengthy one; it can take many months to a few years to finalize an estate. One way many people get around the lengthy probate process and minimize the involvement of the courts is with a will, but it is not the only tool available that can help. Depending on the type of assets in a person’s estate, more than a will might become necessary.

Many people have more than tangible assets, such as real estate, cars, jewelry, art collections and other personal items. When there are financial assets such as joint accounts, trusts, retirement income and life insurance policies in an estate, it is necessary to include estate plan provisions to ensure their proper dispersion. These assets do not qualify for probate, which means neither the probate court nor a will dictates how they transfer. The institution that maintains the accounts often has different rules that take precedence over a testator’s will.

<![CDATA[A Florida guardian's most important role]]> tag:www.korshaklaw.com,2019:/blog//69430.3755130 2019-05-31T18:51:35Z 2019-05-31T18:50:35Z Part of having a good retirement involves creating a good estate plan to divide all of your assets. ABC Action News in Bradenton, Florida, recently ran a story about the importance of having such an estate plan so that people can sell their homes and avoid probate to the best of their abilities. 


]]> Acting in the best interest of the person



Acting in the best interest of the estate


<![CDATA[Understanding the different types of deeds]]> tag:www.korshaklaw.com,2019:/blog//69430.3752334 2019-05-28T20:51:35Z 2019-05-28T20:50:35Z Whether you are looking to purchase or sell property, a deed is an essential part of the process. In short, it certifies that the party looking to make a transaction with the property has the right to do so. 

There are different types of deeds, and depending upon what you are looking to do with the property, a certain type of deed could be most beneficial to you. In order to make that determination, it can be helpful to review the main categories for deeds.

]]> Warranty and special warranty

As the name indicates, a warranty deed provides a type of guarantee to the buyer by the seller. If the buyer discovers that the specific guarantee is not true, the buyer is able to seek and receive damages from the seller through the courts under this warranty. The general warranty covers five specific guarantees, or covenants:

  1. Seisin (sole ownership of the property)
  2. Right to convey
  3. No undisclosed encumbrances
  4. Quiet enjoyment
  5. General warranty (protection from harm due to title defects)

Under the general warranty deed, the seller is responsible for the warranty for himself or herself, as well as any previous owners. However, under a special warranty, the seller is only responsible for the warranty of the property during the time he or she has been the owner.

Fee simple

A fee simple deed denotes that the seller is selling the property to the buyer "fee simple." In other words, the seller is acknowledging that he or she has full and complete ownership of the property, and is able to relinquish those same rights to the buyer.


A quitclaim deed is common for abandoned or unclaimed property. It is important to understand that unlike the other deed types, this deed does not bestow rights to the property. Rather, it verifies that a party that could have rights to the property is releasing them, which can allow another party to claim rights to the property.

There are a few variations of deeds that fall under the different deed types. Consider how the different deed types could benefit your situation to determine the best option for you.

<![CDATA[Is it a good idea to update your estate plan?]]> tag:www.korshaklaw.com,2019:/blog//69430.3717843 2019-04-24T18:21:34Z 2019-04-24T18:20:34Z Many people who create an estate plan consider it a one-and-done task. 

But as lives change - as children are born, as new marriages happen, as loved ones pass away - it often becomes necessary to update estate planning documents.

]]> When a loved one dies

After a loved one's passing, family members must deal with the estate. This is in addition to going through the stages of grieving, making burial and funeral arrangements, and sorting through the belongings of the loved one's home.

This process can be even more taxing if the estate plan is not updated.

The importance of estate planning

Few people would desire to add to a loved one's grief when death descends, yet those left behind are too often perplexed and frustrated. They must try to discover how the deceased would arrange her or his final affairs while barely able to function through the pain of bereavement.

Adult children whose parents planned for the disposition of their estate bypass much of this burden through specific instructions in a parent's estate plan. They avoid the chaos left behind and, particularly in the case of high-value estates, bitter feelings as relatives contest who has the right to Mom's valuable wedding ring or Dad's business interests.

A good estate plan will settle all financial affairs in clear terms that will often avoid some family members' desires for litigation to determine their rights.

What are the risks of delaying estate planning?

Many people put off estate planning. And when they finally create an estate plan, many never think to update it.

But this can easily cause problems down the road. Even celebrities fail to plan, and staggering amounts of money go to the United States government, rather than to children or spouses. Estate determinations in these cases can drag on for years. 

With an estate plan in place, people generally review changes every year or so, depending on needs, such as changes in tax laws or a new birth in the family. Spring is an excellent time to consider getting one's financial house in order.

<![CDATA[Prenuptial agreements and hidden assets]]> tag:www.korshaklaw.com,2019:/blog//69430.3697723 2019-04-09T21:11:35Z 2019-04-09T21:10:35Z Whether considering a first, second or even a third marriage, prospective marital partners may want to make an estate plan that includes a prenuptial (premarital) agreement stating how to divide assets if they divorce. A premarital agreement is a legal contract. As such, the law protects the rights of both people who make the agreement.

When partners dissolve their marriage without having made a prenuptial agreement, Florida law applies equitable distribution to the couple's assets. The court does not split the property straight down the middle as it would in a community property state; instead, Florida's equitable distribution law will govern fair—but not necessarily equal—division of the partners' assets. Equitable distribution does not mean equal distribution.

]]> How are assets treated during a Florida divorce?

Under equitable distribution, a divorce court allocates assets as fairly as possible according to many complex factors covered by Chapter 61 of the 2018 Florida Statutes. This is one reason people considering marriage prefer to formalize how they wish to divide their assets should they divorce, or else the court will make the decision for them.

What happens if a person is deceptive about their assets?

If one prospective marital partner suspects the other partner may hide assets to avoid sharing them in the event of a divorce, the person may watch for possible signs of hidden assets, such as when a partner:

  • Claims to earn a moderate salary but drives an expensive car
  • Spends money lavishly and impulsively on discretionary items
  • Does not want to discuss assets
  • Has an excellent credit score despite spendthrift habits
  • Routinely makes large ATM cash withdrawals
  • Denies he owns a business, but his office receptionist says he is the owner

If signs are present—and unless spousal surveillance is court-ordered during a divorce proceeding to discover missing assets--a prospective marital partner who undertakes aggressive surveillance activity, either before or after marriage, can be guilty of breaking the law. Spying on another person can potentially result in charges of unlawful stalking and invasion of privacy.

How to avoid a fraudulent or dishonest prenuptial agreement

The most important protection is for partners to use an experienced estate planner to set up their premarital agreement. There is no need to source an expensive practitioner in a large city. Smaller areas have perfectly qualified estate planners.

Partners should each read the final draft of the agreement, and they should make sure the document contains both their names in full with correct spelling. The couple should verify that the terms of the agreement accord with their desires. Both members of the couple must sign the final prenuptial agreement to make it valid.

<![CDATA[Florida probate and the benefits of trust decanting]]> tag:www.korshaklaw.com,2019:/blog//69430.3692311 2019-04-03T18:11:35Z 2019-04-03T18:10:35Z Probate administration can include a valuable practice called trust decanting. Estates can include irrevocable trusts, which are set up by a grantor to distribute assets to beneficiaries. A trustee administers the trust for the welfare of the beneficiaries.

An irrevocable trust locks in methods of asset investments and distributions according to the terms of the trust. For example, some irrevocable trusts allow a trustee to distribute funds to pay for college tuition or medical care. Often, upon the grantor's death, the trustee often divides the remaining funds and gives them to the beneficiaries.

]]> Limitations of irrevocable trusts

In the past, even though the intent of the grantor was to protect assets in certain ways, such as provision for tax advantages, changing tax laws and other conditions caused the trust to become less favorable. The permanent nature of the trust meant beneficiaries could lose asset advantages.

Recognizing irrevocable trust limitations, many states, including Florida, have enacted laws allowing the original trust to be "decanted" or poured into a new trust, similar to transferring old liquid into a new bottle while leaving the unwanted sediment behind. The trustee can implement trust decanting without going through a court procedure.

Florida decanting law allows probate flexibility

The benefits of making advantageous changes and pouring an old trust into a new trust have been a great help in preserving wealth for beneficiaries. Some of the reasons to decant an original trust into a new trust include the following:

  • To take advantage of beneficial changes in tax laws
  • To correct legal mistakes and clarify ambiguities in the original trust
  • To make an asset transfer into a special needs trust
  • To change trustee powers
  • To delay or modify distribution if a beneficiary develops a substance abuse problem
  • To allow for marital issues
  • To add a spendthrift provision to prevent creditors from attaching assets before beneficiary distribution

Those who are considering probate planning may want to discuss trust decanting issues with their probate professional regarding an existing trust or the creation of a new trust. Trust decanting is a powerful tool in successful probate planning or modification for Florida residents. 

<![CDATA[What is summary administration in Florida probate law?]]> tag:www.korshaklaw.com,2019:/blog//69430.3683162 2019-03-28T17:11:34Z 2019-03-28T17:10:34Z Most people think of the probate process as being lengthy and complicated. However, under Florida law, there is a simple process that applies to specific situations.


]]> About probate


Understanding summary administration



Paying debts

Under Florida law, the petitioner who files for summary administration must “make a diligent search and reasonable inquiry for any known or reasonably ascertainable creditors.” The petitioner must then serve each creditor with a copy of the petition and arrange for payment. However, there is a nonclaim provision in Florida that blocks creditor claims if more than two years have passed since the death of the decedent.

Asset distribution


<![CDATA[Your LLC operating agreement horror story]]> tag:www.korshaklaw.com,2019:/blog//69430.3661379 2019-03-12T21:41:34Z 2019-03-12T21:40:34Z When you read this article title, you breathe a sigh of relief. There will be no horror story about your LLC. You do not have an operating agreement; therefore, you have no horror story.

Unfortunately, you are not only wrong, you already have the material for chapter one.

]]> Suppose you have three partners, and you agree that each of you will share a fourth of the business—in sickness and in health. As in most LLC relationships, you smooth out a few details and set sail in calm waters. You will be the executive partner, and the other partners will respectively be in charge of production, sales and accounting.

When an LLC partner wants to dissolve the marriage

You may have heard an LLC is like a marriage. If you believe the analogy, you could eventually regret that you skipped the prenuptial agreement when you ignored advice to create an operating agreement since Florida does not require it for an LLC. You know that businesses, no matter their type of formation, encounter rocky areas. As friends and partners, you trust each other. You collectively learn how to run your business, and you solve problems together. After many months, your profitable business has $140,000 in the bank.

Why an LLC operating agreement makes a difference

During a Monday morning business meeting, your sales manager abruptly states he has decided to move to another city and will no longer be with the company after closing time tomorrow. Stunned, you watch in disbelief as the sales manager walks out the door. The sales manager drives to the bank and withdraws $139,000 from your company business account, then moves to another state the same day.

You and your remaining partners scramble to salvage what is left of the business and consult a business attorney. He asks for paperwork covering your business activity, including the operating agreement. Sadly, you have the material for the rest of your horror story because there was no operating agreement to prevent the sales manager's behavior. 

Who prepares your LLC operating agreement matters

You should know that having an operating agreement does not make your LLC bullet-proof. There are horror stories of LLC losses you may hear from former business partners who obtained a generic operating agreement form on the internet or relied on a weak agreement drawn up by a standard practice. You and the two remaining partners decide to dissolve the existing company and start a new LLC.

Your new partnership agrees to obtain a strong legal operating agreement. The strength of your operating agreement depends on hiring a professional experienced in providing specific legal analysis to protect your type of business operations. Almost every operations difficulty your new LLC will face, including removal of an unsuitable partner or conducting a closure, can be effectively addressed by a well-constructed professional operating agreement. 

<![CDATA[These celebrity estates hide some sobering lessons]]> tag:www.korshaklaw.com,2019:/blog//69430.3641545 2019-02-26T17:21:34Z 2019-02-26T17:20:34Z In many ways, celebrities are not that much different from everyone else. For example, they may not fully understand the complications that could arise from wills, trusts and probate procedure.


]]> Trust problems

Plenty of things can go wrong with trusts, but simply not funding or using them are the most common missteps. Michael Jackson's estate, worth hundreds of millions of dollars, included a trust that never had any money added. Philip Seymour Hoffman's estate ended up paying federal taxes due to a complete lack of trusts.

Will debates

Wills have their own set of issues. For example, beneficiaries and interested parties must be able to locate the document — something that was never possible in the case of gold medalist Florence Griffith Joyner's estate. Both Whitney Houston and Heath Ledger died with outdated terms that excluded recent earnings and family members respectively. Prince Rogers Nelson did not leave a will at all.

Inheritance confusion



<![CDATA[When you need legal help during probate]]> tag:www.korshaklaw.com,2019:/blog//69430.3623609 2019-02-12T19:01:34Z 2019-02-12T19:00:34Z As the executor of someone’s Florida will, you likely wonder if you should hire an attorney to help you take the decedent’s estate through probate. Unless the estate is an extraordinarily simple one, yes, you should.

Your duties as executor cover all aspects of overseeing and managing the estate’s assets, up to and including final distribution to the designated heirs. Between the time you start the probate process and the time you close it by distributing the estate’s assets, however, you can face many complex issues for which the advice, counsel and guidance of an experienced probate administration attorney will stand you in good stead, especially when it comes to the following three issues:

  1. A will challenge
  2. A contract situation
  3. A situation requiring court intervention
]]> Will challenges

If someone challenges the validity of the will for which you are the executor, you need to hire an attorney to defend against that challenge and represent the estate’s interests. A will challenge represents a full-blown court proceeding during which each side presents evidence in support of their respective positions. The person bringing the challenge will have an attorney representing him or her. You and the estate need an attorney who represents your side.

Contract situations

The types of assets a testator owned and the way in which many of them chose to pass on those assets often result in a situation where someone needs to draft a contract or other legal document in order to carry out the testator’s wishes. For example, if the testator owned a business that (s)he passed on, in equal or unequal shares, to his or her four adult children, you will need to hire an attorney to draft the appropriate partnership agreement among the new owners of the business.

And what if one of the children does not wish to own part of the business and instead would prefer to sell his or her interest to one or more of his or her siblings? Here again, you need an attorney to draft the sales agreement as well as the new partnership agreement.

Court intervention

The probate court may need to intervene in things other than a will challenge. If, for instance, the estate has insufficient assets to pay the outstanding bills of all the testator’s creditors, the court will need to step in and determine who gets what and how much. This represents another situation in which you need to hire an attorney to represent the estate’s best interests.

Fortunately, you do not need to pay the legal fees and expenses charged by the attorney you hire. Instead, the estate itself will pay them.

<![CDATA[Different types of guardianships]]> tag:www.korshaklaw.com,2019:/blog//69430.3612741 2019-02-04T23:21:35Z 2019-02-04T23:20:35Z Florida courts allow people to retain guardianship over an individual for certain reasons. While different circumstances surround each reason, they all revolve around one individual making decisions on behalf of someone else who is not in a position to make medical or financial decisions independently. 


]]> Guardianship over incapacitated adults


Temporary guardianship over adults


Guardianship over minors


<![CDATA[Special needs trust options to consider]]> tag:www.korshaklaw.com,2019:/blog//69430.3599705 2019-01-28T17:01:35Z 2019-01-28T17:00:36Z You want to keep your loved ones safe. When you have a loved one who has special needs, there may be additional measures that you must take.

To aid in providing for a loved one with special needs, there are special needs trust options available. Before selecting the one for you, it is important to understand certain aspects of each choice.

]]> Self-settled

This is becoming more popular with the passing of the Special Needs Trust Fairness Act, which went into effect in 2016. It allows the individual with special needs to set up a special needs trust of their own accord. It is important to note that a family member may set up this trust as well, and the disabled party must meet certain requirements to qualify for the trust. Parties may utilize the trust to manage an inheritance, a settlement, life insurance payments or other assets.

Third party

A third party trust is very common. Guardians or family members of an individual with special needs are able to create this type of trust. In many cases, parties use the trust to pay for various needs or desires of the individual with special needs, such as the following:

  • Personal services and expenses
  • Transportation
  • Vacations
  • Classes or hobbies

A trustee manages the trust and makes all allocations to ensure the proper usage of the trust. In that vein, funds must go directly to the activity or service and the beneficiary cannot receive cash payments.


Similar to a self-settled trust, a disabled party or family member can create a pooled trust. With this type of trust, family members and loved ones are able to contribute to the fund jointly, or "pool" their monies together.

This is just an overview of the different special needs trusts that are available. If you are considering any of these options, take some time to review the trust, its requirements and any stipulations, to ensure it is the right choice for you and your loved one.