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Probate & Guardianship

What is Probate?

Probate is the system of court proceedings by which the estate of a decedent is processed and distributed under the supervision of the state's probate court.   The process usually begins with depositing the decedent's original will with the court and filing a petition asking the court to admit it to probate and appoint a personal representative who will carry out the administration of the estate in accordance with law and the terms and conditions specified in the will.  If there is no will the decedent is said to have died "intestate" and the process will involve determining who should serve as personal representative and the identity of the heirs who will inherit the estate. The personal representative's job is to collect and inventory and safeguard the assets of the estate, pay all valid debts and administration costs, to the extent there are assets subject to the claims of creditors, and distribute the net assets to the beneficiaries.  Notice of administration must be given to creditors and all persons having an interest in the estate.  Once all of the claims against the estate are satisfied or accounted for, and tax returns filed, if any, the personal representative is free to distribute the estate and account to the beneficiaries and the court at which time the estate is generally closed. 

Guardianship

Guardianship is the legal process by which the court appoints a surrogate decision-maker to make either personal or financial decisions for a minor or an adult with mental or physical disabilities.  In Florida, after adjudication the person subject to the guardianship is referred to as a "ward." Guardianship in Florida can be either voluntary or involuntary. An adult who is mentally competent yet incapable of managing his or her own estate may petition the court for the appointment of a guardian. 

Involuntary adult guardianship is established by the court when it is found that an individual's ability to make decisions is so impaired that it is necessary to appoint another to make decisions.  However, guardianship is only warranted when no less restrictive alternative is available or in place such as a durable power of attorney, trust, health care surrogate or other form of preneed directive.  

Guardianship can be either limited or plenary.  Limited guardianship is appropriate if the court finds that an individual lacks the capacity to some but not all of tasks necessary for the care of either his or her person or property and such person does not have a preplanned set of written directives to provide for all aspects of life.  A plenary guardianship requires the appointment of a person to exercise all delegable legal rights and powers of an adult ward.     

In Florida, courts are required to appoint a guardian for minors in circumstances where the parents die or become incapacitated or if a minor receives an inheritance or proceeds of a lawsuit or insurance settlement which exceeds the statutory limitation, currently $15,000.00. 

All adult and minor guardianships require court oversight.