Estate Planning

Planning Your Life According to Your Wishes

No matter how much (or little) you own, it is important to plan ahead for how your estate will be distributed after you pass away. To put it simply, estate planning is the process wherein you put together legally binding documents like wills, trusts, powers of attorney, advance health directives, etc. in order to make sure your assets are distributed according to your wishes after you die. Working with an established estate planning attorney will make sure that all of your documents are legally enforceable and nothing is left out that could invalidate your wishes.

Other benefits of estate planning include:

  • Avoiding expensive probate court proceedings
  • Sparing your loved ones the stress of family disputes
  • Protecting your beneficiaries from outside influences, creditor problems, and even divorcing spouses
  • Protecting assets from possible future creditors

For a free initial consultation, contact Rodriguez Law, P.L. or call 305-262-8226 today.

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Probate. We hear about this word, but what exactly is it? Probate is when a court gathers the assets of the person who died, pays the decedent’s debts and distributes the decedent’s assets to the person’s beneficiaries. If you create a will (“testate”), then the court will review your will and look to it for instructions on how to distribute your assets. On the other hand, if you don’t have a will in place (“intestate”), then the court will distribute your assets to beneficiaries on your behalf and potentially pay creditors.

In Florida, the deceased’s “personal representative” that they designate in their will is the one who can initiate probate proceedings. This can be an individual or an institution like a trust company or a bank. If the deceased did not name a personal representative, then usually the spouse will act as decedent’s personal representative. If they did not have a spouse, then the heirs can agree to a personal representative. If the heirs can’t agree, the judge may select who he or she thinks is best qualified.

Probate may be necessary to transfer property and assets in decedent’s name to the name(s) of any beneficiaries. There are two primary types of probate in Florida: summary administration and formal administration.

  • Summary administration is an option if a person passed away more than two years ago or the total value of the property that would have to go through probate does not exceed $75,000. With this process, the executor of the will or any beneficiary files a Petition for Summary Administration signed and verified by the surviving spouse (if applicable). The petition lists the assets and their value and specifies who inherits what. Instead of appointing a personal representative for the estate, the court will issue an order releasing the property to beneficiaries.
  • Formal administration, otherwise known as ‘regular’ probate, begins when the executor or another interested party asks to be appointed as personal representative of the estate. The proceeding generally takes place in the county where the deceased passed away, with beneficiaries and heirs given advance notice. If there is a will, it must be filed with the court and proven valid. With wills that essentially self-proving, the document itself may be submitted. The personal representative collects and inventories assets, pays taxes and debts, and distributes the remainder to beneficiaries. He or she must also submit a final accounting to the court that includes the estate contents, details about how the assets were managed, and how they will be distributed. Typically, the whole process takes six months to a year.

Losing a loved one is hard enough. But probate can be such a technical and overwhelming procedure that your family may experience confusion as well as grief when you pass. We work actively and closely with executors and estate administrators to identify and collect assets and organize family and financial information.

We will guide you through each step of the probate planning process so that you understand what is required and the best way to meet those requirements.


When an individual is no longer able to manage his or her personal, medical, and financial affairs (in other words, the individual is incapacitated), a court appointed guardian may step in to exercise the legal rights of the incapacitated person. Guardianship refers to the management of someone’s affairs when he or she is no longer capable of doing so. It involves a legal proceeding where the court determines whether a person is incapacitated and appoints a guardian on behalf of the incapacitated person. Once a person is appointed, he or she assumes the right to make important decisions on behalf of the incapacitated individual, and is both ethically and legally bound to always act in the incapacitated person’s best interests. Duties may include:

  • Overseeing medical decisions
  • Managing assets
  • Directing living arrangements

In Florida, a person is qualified to serve as a guardian if he or she is over the age of 18, and either a resident of the state or nonresident who is directly related to the ward by marriage, blood, or legal adoption. The guardian may be a relative. They must also have never been convicted of a felony. Having a guardian over the ward (incapacitated person) will make sure that they live a fulfilled life even when they can’t do it for themselves.

If you have a valid Durable Power of Attorney in effect when the person become incapacitated, then a guardianship may not be necessary.

When properly arranged, guardianship is a valuable and effective way to protect your health and assets if you become incapacitated. The person you want to make key decisions for you is clearly identified, lowering the risk of family conflict that can remove the focus from your care.

Wills & Trusts

A “will” is an instrument executed by a person in the manner prescribed by law, that disposes of the person’s property on or after his or her death according to the person’s instructions and includes an instrument which merely appoints a personal representative or revokes or revises another will. Many people assume that a will is only for those who are older or who have accumulated a certain amount of wealth. The reality is that any adult should consider having one.

A will legally documents your wishes regarding important estate matters such as:

  • Guardianship of minor children—for parents, this is arguably the single biggest reason to create a will
  • Distribution of assets such as money, real estate, and valuables
  • Providing gifts to charity
  • Sale of real estate and other assets

In some instances, establishing a trust is also recommended. A trust is a legal arrangement that empowers a designated third party to hold assets on behalf of beneficiaries. A trust may bypass probate, so your beneficiaries may receive their assets sooner than if you transferred them using a will. Other benefits of trusts include:

  • Ability to control your wealth by specifying the terms of a trust
  • Private distribution of your assets, unlike probate, which is a matter of public record
  • Preserving your legacy

Different trust types include living and testamentary, revocable and irrevocable, asset protection, supplemental needs, special needs, and income-only. When you meet with us, we will review your needs and come up with a solution that matches them.