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Some or all financial, medical, and social affairs of a person deemed incapacitated are handled in a court process called guardianship administration. To initiate a guardianship proceeding, a petition is filed that states the basis for the belief that the person in question is incapacitated. Then, a court-appointed committee is formed to evaluate the person and report their findings back to the court. If the court finds the person incapacitated, and alternatives to guardianship are found to be inadequate, a guardian is appointed. Guardians are often a friend or relative of the incapacitated person, but a professional guardian may be appointed if needed. Guardians have legal rights and responsibilities, so it is important that a person interested in becoming a guardian be represented by an estate planning lawyer in Miami who is experienced with guardianship administration matters.

A will contest is a probate proceeding where one party challenges a Last Will and Testament that has been submitted for probate. Will contests can be brought by anyone with a property right in or claim against the testator’s estate, namely, “interested persons.” Reasons for contesting a will often include suspected fraud or financial exploitation. A will, or portion of a will, can be invalidated by the probate court if it determines that the testator (individual who executed the will) was subject to undue influence. Proving undue influence, however, requires more than simply identifying motive and opportunity. Usually, the contester (person contesting a will) must present evidence that a third person’s influence overpowered the free will of the testator such that the Last Will and Testament reflects the wants and desires of the third person rather than those of the testator. Disputes involving a will require a probate litigation attorney with the skill, experience, and understanding needed to build a credible case to best represent their client.

Litigation in probate court is an effective tool for heirs and other interested parties that suspect estate planning documents have been altered for purposes of transferring money, property, or other assets away from individuals originally designated as recipients. The probate litigation process involves identification and proper valuation of all of the deceased person’s assets, determination and payment of tax liabilities, and, ultimately, the allocation of assets. Probate and estate planning attorneys in Miami find that document changes are often contested for a number of reasons, including the contester’s concern that a person took advantage of the testator’s diminished mental or physical capacities, concerns that changes to the documents in question were done so under duress, and allegations of fraud. Contesters may also take issue with lifetime transfers of property.

Litigation may become necessary in the event a trustee falls short of their administrative duties or the upholding of fiduciary obligations placed on the trustee by the law or the trust itself. A beneficiary cannot challenge the actions of a trustee for failing to put their interests above all else if in doing so the trustee violates duties it is bound to adhere to under the law. However, a beneficiary can challenge, among other things, the particular terms of a trust or the actions or qualifications of a trustee. A beneficiary can also request changes to various provisions or clarification of possible ambiguities in the trust. Trustees that have allegedly mismanaged assets or engaged in other inappropriate behavior may find themselves party to litigation.

For those individuals who do not qualify for long term care insurance or cannot afford the monthly premiums of such plans, other possible options are worth exploring. Advanced planning and asset management can better position a person to qualify for Medicaid for purposes of long-term care in later years. The process of qualifying for Medicaid benefits, while also minimizing asset expenditures and maximizing preservation of wealth for a spouse, child, or other possible beneficiaries, is best handled by working with a Miami estate planning lawyer well-versed in both state and federal law. A skilled estate planning attorney can review the various Medicaid planning options available to an individual and explain how the Medicaid eligibility process works.

We invite you to explore our website or contact us directly to learn more about our firm. We hope to have the opportunity to serve all your estate planning needs. For an initial consultation, please call Chepenik Trushin LLP at (305) 981-8889 or contact us online.