Florida Probate Attorney Mark B. MacLean Practice Areas and Legal Definitions

Florida Probate:

Probate is the legal process of transferring property following a person's death. Although probate customs and laws have changed over time, the purpose has remained much the same: an individual formalizes their intentions as to the transfer of their property at the time of their death (typically through a Will), their property is collected, certain debts are paid from the estate and the property is distributed accordingly.

Florida Wills:

A Will is a written instrument containing directions on how the assets and property of the testator (individual creating Will) shall be divided upon his or her death. Wills can also contain instructions regarding the care of minor children, gifts to charity, and formation of posthumous trusts. In order for a Will to be legally valid, the testator must sign the Will in the presence of two witnesses, and he or she must be mentally competent and not acting under duress or under the controlling influence of another. For more information related to Wills, please contact the Jacksonville, Florida estate planning law firm of Mark B. MacLean, P.A.

Will Contest Litigation:

A Will Contest is a type of litigation that challenges the admission of a Will to probate. Issues that are likely to spur the contesting of a Will include:

• the testator lacked mental capacity, i.e., was senile, delusional, or of unsound mind at the time the documents were created
• the testator was subjected to fraud, coercion or undue influence during its creation and implementation
• there are ambiguities in the document, or
• the Will is a forgery or does not conform to legal requirements as to the number and nature of the witnesses.

If the Will is thrown out, the court may disallow only the part of the Will that was challenged, or throw out the entire Will of the decedent, distributing the property as if the person died without a Will, or use the last previous Will, depending on state law and the specific facts and circumstances.

Florida Trusts:

Trusts are estate-planning tools that can replace or supplement Wills, as well as help manage property during life. A trust manages the distribution of a person's property by transferring its benefits and obligations to different people. By maintaining assets in a Trust, it is often easier to minimize taxes and leave a larger inheritance. A Trust is also a way to provide a steady income to the Beneficiary over the course of time, rather than distribution in a lump sum. This strategy can reduce the Beneficiary's tax and allow the Trust to grow through investment, and keep assets free from creditors of the Trust beneficiary. Trusts can also be established for the benefit of charitable organizations.

Probating Estates:

Estates are categorized as probate or non-probate property. Probate property is property that is transferred by the provisions of a Will. Non-probate property is property that is either jointly held and passes by right of survivorship, is directed by beneficiary designation such as an IRA or a life insurance policy, or passes according to the terms of a trust.

Florida Estate Planning:

Good estate planning is more than just a simple Will. Estate planning minimizes potential taxes and fees, such as the transferring of assets at the lowest possible Federal and State gift and estate tax, and sets up contingency planning to make sure wishes regarding health care treatment are followed before and after death. A good estate plan also coordinates what happens to a home, investments, business, life insurance, employee benefits (such as a 401K plan) and other property in the event of disablement or death. Estate tax and other estate-related issues are hot legislative items, with new laws being passed on a regular basis. A competent and experienced estate-planning lawyer is critical in assuring that your unique estate planning goals are understood and carried out.

Florida Powers of Attorney:

Powers of Attorney are governed by the law of agency, a branch of common law concerned with the delegation of power from one person (the principal), to another (attorney-in-fact or agent). When a person becomes incapacitated, the government or the court often steps in and appoints someone to represent and make legal decisions that the person would have to make.

One of the ways to avoid government or court intervention and appointment of a stranger to act as your guardian is to use a Power of Attorney, which is a written document stating that one person gives to another person the full power and authority to represent him or her or it can be limited in scope. There are two types of Power of Attorneys: one covering assets and one covering health care decisions.

If you or someone you know in Jacksonville, Florida, or within the surrounding cities and counties of Northern Florida, needs the assistance or legal counsel of an experienced probate lawyer, contact Attorney Mark B. MacLean today at 866-665-8310, or complete the contact form provided on this site to schedule your free consultation.

Frequently Asked Questions of Florida Probate Attorney Mark B. MacLean

What is Probate?

Probate is a process whereby the Court supervises the transfer of assets from the deceased person to his or her heirs and requires the filing of particularized and complicated legal forms. Jacksonville, Florida probate Attorney Mark B. MacLean has particular expertise and experience in the area of probate and estate administration. He can promptly respond to your questions and inquiries and assist you with the probate and estate administration process in a professional, courteous and timely manner. If an Estate Tax Return (Form M-706) is required, Attorney MacLean has the ability to promptly take care of this important tax requirement and assist you with the following types of probate matters:

• Petition for probate of estate
• Conservatorships
• M-706 estate tax preparation
• Will and trust contests
• Estate and trust administrations

How is a Will probated?

The following is a simplified outline of the general probate process:

• The original Will is deposited with the Court.
• The Executor named in the Will or Administrator is appointed. Executors and Administrators are commonly referred to as Personal Representatives.
• The Personal Representative files a Petition for Probate of the Estate.
• For approximately four months from date of Petition for Probate, creditors of the Estate can file claims against the Estate. This would include any prior creditors or judgment holders, debts resulting from last illness, funeral expenses, taxing authorities, etc.
• During this time period, the Personal Representative has to identify and collect assets of the Estate. To do this, the Personal Representative finds all bank and security accounts, debts owed to the Decedent, property owned by the Decedent, etc. The Personal Representative also has to maintain the assets in good condition. This consists of maintaining insurance coverage, collecting rent, protecting assets from theft or damage, etc. The Personal Representative may also liquidate assets such as cars, real estate, etc. during this time.
• When the four-month claims period has expired, and when all assets have been collected, real property sold, and assuming no problems have presented themselves such as the Will being contested, the Personal Representative then files a petition with the probate court to allow a distribution of all remaining assets to the beneficiaries/heirs, and files a detailed accounting with the Court setting forth all monies received, monies disbursed, how assets were invested, and the proposed plan for distribution.
• If the Court approves the plan, the Personal Representative then divides the assets as instructed in the Will, or as required by statute if no Will exists.

The minimum amount of time that the probate process can be completed is approximately six months, but it normally takes longer. Reasons for delays can include Will contests, property cannot be sold, claimants not being notified in the original four-month claim period, etc.

Are there different types of Wills?

There are many types of Wills:

• A Double Will is one in which two people join together, leaving their individually owned property and estate(s) to the other. This type of Will is also called a Counter Will, Joint and Mutual Will, or Reciprocal Will.
• Holographic Wills are entirely handwritten, dated and signed by the testator.
• A Living Will, Medical Directive or Health Care Directive is one that authorizes the continuance or cessation of life-sustaining medical treatments from an individual who is incapable of making that decision due to debilitating circumstances.

Jacksonville, Florida estate planning lawyer Mark B. MacLean can help you or a loved one decide which type of Will is most suitable.

Who should make a Will?

Every adult person should consider making a Will. Each year a large number of people die without Wills, leaving major decisions in the hands of the state of Florida. Wills are especially important for parents of children who are under eighteen, as arrangements for the children's financial support and/or appointed guardian can be determined. Without a Will, any property distributed to minor children could be subject to an expensive court-appointed guardianship, which could greatly affect inheritance. And in some states, if you were married and childless, your parents could split your property with your spouse if not alternatively predetermined in a Will.

How does a Trust work?

Trusts are the process by which the grantor transfers legal ownership to a person or institution (called the trustee) to manage the property for the benefit of another person (called the beneficiary). Trusts create a fiduciary relationship between the trustee and the beneficiary. The trustee must act solely in the best interests of the beneficiary when dealing with the trust property. If a trustee does not live up to this duty, the trustee is legally accountable to the beneficiary for any damage to his or her interests. The grantor may act as the trustee himself or herself, and retain ownership instead of transferring the property. A grantor may also name themselves as one of the beneficiaries of the trust.

What about Health Care Provisions and Powers of Attorney?

Florida extends the delegation of decision-making power to cover health care issues including the withholding or withdrawal of life support treatment by means of a Power of Attorney for health care. Through this Power of Attorney, you have the right to designate an agent who can make treatment decisions for you in instances where no communication is possible because of your medical condition.

In addition to health care considerations, it is also important to have a Power of Attorney available to handle various legal and financial matters in the event you become mentally incompetent. For example, a surviving spouse can be given a Power of Attorney to handle her incompetent spouse's salary checks, social security benefits and to make other legal and financial decisions.

What are Estate (Death) Taxes?

Estate tax may apply to your taxable estate at your death. Your taxable estate is your gross estate less allowable deductions. Your gross estate includes the value of all property in which you had an interest at the time of death. Your gross estate also will include the following.

• Life insurance proceeds payable to your estate or, if you owned the policy, to your heirs
• The value of certain annuities payable to your estate or your heirs
• The value of certain property you transferred within 3 years before your death
• Trusts or other interests established by you or others in which you have certain powers

The allowable deductions used in determining your taxable estate include:

• Funeral expenses paid out of your estate
• Debts you owed at the time of death
• The marital deduction; generally, the value of the property that passes from your estate to your surviving spouse

If you or someone you know in Jacksonville, Florida, or within the surrounding cities and counties of Northern Florida, needs the assistance or legal counsel of an experienced probate lawyer, contact Attorney Mark B. MacLean today at 866-665-8310, or complete the contact form provided on this site to schedule your free consultation.

Professional Biography of Florida Probate Attorney Mark B. MacLean

When representing probate litigation clients, whether fiduciaries or beneficiaries, Florida estate administration lawyer Mark B. MacLean seeks a prompt and successful resolution to all probate disputes by using his meticulous skill to compose comprehensive Will and trust documents. Attorney MacLean works hard to protect and advance each of his probate client's interests and rights in a cost-effective manner.

Please call Florida probate lawyer Mark B. MacLean today at 866-665-8310, or complete the contact form provided on this site to schedule your free consultation.

Firm Address:

Mark B. MacLean, P.A.
2033 Flesher Ave.
Jacksonville, FL 32207
Telephone: 866-665-8310
Free Initial Consultations

Mark B. MacLean, Attorney

Bar Admissions:

• Florida , 1992
• Georgia , 1992

Law School:

• Mercer University , J.D., 1992

College:

• University of North Florida , B.A., 1984

Professional Memberships:

• Jacksonville Bar Association

• Local Small Business Referral Network
• Real Property Section
• Trust Section
• Business Law Section