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Personal Injury Questions

Q: What Do I Do Following A Car Accident?A: If you have just experienced a car accident, following these steps could protect you from further harm after an accident.

  1. Get to a safe place. If you can do so, pull your car off the roadway. If you are unable to get your vehicle off of the roadway, turn on your emergency flashers. If you exit the vehicle, do so carefully and consider moving traffic. If it is unsafe to exit your vehicle or you are unable to do so, remain inside your car until others can assist you.
  2. Call the police. Police offers are trained investigators and filing a police report with your account of the incident can be important in determining fault of the accident.
  3. Seek medical attention as soon as possible. Any obvious injury needs to be treated immediately, but also car accidents can cause injuries that may flare up days or weeks after the accident. Precautionary medical attention is important to draw attention to hidden injuries such as whiplash, TMJ, and/or traumatic brain injury.
  4. Call Kovar Law Group as we are appropriately educated and equipped to advise you and protect your rights following an accident. For further reading, we have highlighted more steps to take following a car accident here:

What to do after a car-accident

Q: What Do I Avoid Following An Accident?A:To avoid following an accident, follow these steps:

  1. Avoid giving any recorded statements to insurance companies. The insurance companies have a bottom line and an interest in profit, and therefore do not always have your best interest at heart. Your best interest is in recovering from the loss you have suffered while avoiding large out-of-pocket expenses from the car accident. Because of these conflicting interests, it is very unlikely that one of these recordings could benefit you. More than likely they will be used against you.
  2. Do not delay in seeking recovery on your insurance claim. Florida has a statute of limitations on suing for personal injuries, which is essentially a time limit on how long you have to seek legal recourse. Personal injury actions must be brought within four years of the accident which caused your injuries. If you wait beyond this limit to file your claim, you will be barred from recovery completely. It is important that you protect your rights against these strict time limits by seeking quick medical and legal attention after your accident.

Q: What If I Am Involved In A Hit & Run?A: If you are involved in a hit and run, the negligent driver is never identified, or otherwise do not know who caused your accident, Plaintiffs can sometimes recover in Florida through underinsured/uninsured motorist insurance. We have covered UM policies in further detail in another blog post located here.

Uninsured motorist coverage

Probate Questions

Q: What Is Probate?A: Probate is a court-supervised process used to identify and gather the decedent’s assets; pay taxes, claims, and expenses; and to distribute assets to beneficiaries. The Florida Probate Code is found in Chapters 731 through 735 of the Florida Statutes.
There are two types of probate administration in Florida:

  1. Formal Administration
  2. Summary Administration

Florida law also establishes a non-administration proceeding called “Disposition of Personal Property Without Administration.”
Q: What Are Probate Assets?A: Probate assets are those assets solely in the decedent’s name at time of death or otherwise owned solely by the decedent and which contain no provision for automatic succession of ownership at death. For example:

  1. A bank account in the sole name of a decedent is a probate asset, however, but a bank account held in-trust-for (ITF) another, or held jointly with rights of survivorship (JTWROS) with another, is not a probate asset;
  2. A life insurance policy, annuity or individual retirement account that is payable to a specific beneficiary is not a probate asset, but a policy payable to the decedent’s estate is a probate asset;
  3. Unless it is homestead, real estate titled solely to the decedent is a probate asset, but real estate held as joint tenants with rights of survivorship or as tenants by the entirety is not a probate asset;
  4. Property owned by husband and wife as tenants by the entirety is not a probate asset on the death of the first spouse to die, but goes automatically to the surviving spouse.

Q: Why is Probate Necessary?A: Probate wins up the affairs the decedent leaves behind after death. It allows the transfer of assets from the decedent to the proper beneficiary. Florida law provides for all aspects of the probate process, but with a valid will, the decedent can dictate certain decisions.Q: What Is A Will?A: A will is a writing, signed by the decedent and witnesses, which meets formal requirements set forth by Florida law. A will usually designates a personal representative and names beneficiaries to receive probate assets, and can also establish a trust or trusts and designate a trustee.

In the absence of a valid will, Florida law designates the beneficiaries and designates the way to select a personal representative.Q: What Happens To Probate Assets If There Is No Will?A: Dying without a will is called dying “intestate.” The Florida intestacy statute dictates how a person’s property and assets are distributed through probate.

    1. Surviving Spouse and No Lineal Descendants. If there is a surviving spouse and no lineal descendants, the surviving spouse takes all.
    2. Surviving spouse and lineal descendants.

a. If there is a surviving spouse and one or more lineal descendants (with the lineal descendants all being the lineal descendants of the surviving spouse as well as the decedent), the surviving spouse receives the first $60,000 of the probate estate plus one-half of the rest of the probate estate, and the lineal descendants share the remaining half.
b. If there is a surviving spouse and one or more lineal descendants (one or more of which lineal descendants are not also lineal descendants of the surviving spouse), the surviving spouse receives one-half of the probate assets and the lineal descendants share the remaining one-half.
c. No Surviving Spouse, But Lineal Descendants. If there is no surviving spouse, but there are lineal descendants, the lineal descendants share the estate, which is initially broken into shares at the children’s level, with a deceased child’s share going to the descendants of that deceased child.
d. No Surviving Spouse, No Lineal Descendants. If the decedent left no surviving spouse or lineal descendants, the probate property goes to the decedent’s surviving parents, and if none, then to the decedent’s brothers and sisters and descendants of any deceased brothers or sisters. The law provides for further disposition if the decedent is survived by none of these.
e. Exceptions to Above. The above provisions are subject to certain exceptions for homestead property, exempt personal property, and a statutory allowance to the surviving spouse and any lineal descendants or ascendants the decedent supported. Regarding homestead, if titled in the decedent’s name alone, the surviving spouse receives a life estate in the homestead, with the lineal descendants of the deceased spouse receiving the homestead property upon the death of the surviving spouse. If there are no lineal descendants, the surviving spouse receives full ownership of the homestead outright.Q: Who Is Involved In The Probate Process?A: While there may be others, the following is a list of persons or entities often involved in the probate process:

  1. Clerk of the Circuit Court
  2. Circuit Court Judge
  3. Personal Representative
  4. Attorney for the Personal Representative
  5. Claimants
  6. Internal Revenue Service (IRS)
  7. Florida Department of Revenue
  8. Surviving Spouse and Children
  9. Other Beneficiaries
  10. Trustee of Revocable TrustQ: Where Are Probate Papers Filed?A: Probate papers filed with the Clerk of the Circuit Court, typically in the county where the decedent lived at the time of death. A filing fee is required by the clerk to commence the probate administration.Q: Who Supervises The Probate Administration?A: A Circuit Court Judge presides over probate proceedings. The presiding judge appoints the personal representative and issues “letters of administration.” Letters of Administration gives the authority to the personal representative to act.

Q: What Is A Personal Representative? A: A Personal Representative is a person appointed by the Court to settle and distribute the estate of a deceased person according to either the deceased person’s will or the Florida intestate statute, which controls have estates are distributed when a deceased person does not have a will.Q: What Does a Personal Representative Do? A: A Personal Representative typically has the following duties:

  • Collect and distribute the estate assets;
  • Notify creditors of the deceased person’s death and pay properly filed claims;
  • File tax returns;
  • Pay any costs of administration from the deceased person’s estate;
  • Close the probate estate.

Q: Who Can Be a Personal Representative? A: Anyone wishing to serve as a Personal Representative must

  1. be a Florida resident,
  2. be at least 18 years old,
  3. have mental capacity, and
  4. has not been convicted of a felony.

There is an exception to the Florida residency requirement if the person wishing to serve is

  1. a legally adopted child or adoptive parent of the decedent;
  2. related by blood to the deceased person;
  3. a spouse or a brother, sister, uncle, aunt, nephew, or niece of the deceased person, or someone related by blood to any of those persons; or
  4. the spouse of a person of any of the other qualified people listed above. A Personal Representative may also be a bank or trust company with some restrictions imposed.

Q: Who Has Preference to be a Personal Representative? A: Florida courts give preference to persons in the following order to be the Personal Representative of an estate if otherwise qualified:

If there is a will:

  1. The person nominated by a deceased person in his or her will or pursuant to a power conferred in his or her will;
  2. The person selected by a majority of the persons entitled to the deceased person’s estate;
  3. A person who is a devisee under the will, and if more than one: the surviving spouse, a person selected by the majority of the heirs, or the heir most closely related (or the best qualified, most closely related heir).

If there is not a will:

  1. The deceased person’s surviving spouse;
  2. The person selected by a majority of the heirs;
  3. The heir most closely related (or the best qualified, most closely related heir).

Q: Why Does the Personal Representative Need an Attorney?A: In almost every circumstance, the Personal Representative should be represented by an attorney because many legal issues arise even when the settlement of the estate is straightforward and simple. An attorney assists the Personal Representative is properly filing all the numerous documents required by the Court when settling the estate. An attorney also helps the Personal Representative understand all the duties and powers he or she has been granted by the Court and ensures compliance with the Court’s requests.Q: How Are Estate Creditors Handled? A: A Personal Representative is responsible for sending notices to the known creditors of the deceased person in order to allow those creditors to file claims against the estate. A Personal Representative must also file a Notice to Creditors in a local newspaper so that unknown creditors may file claims against the estate. A Personal Representative (or any other interested person) may file an objection to a claim made by a creditor, which triggers a separate independent lawsuit outside of the probate process. Any claims that are not objected to are paid by the Personal Representative out of the assets of the deceased person’s estate.

Creditors may choose to file a legal document called a caveat before a probate estate is opened. In that instance, those creditors will receive notification of a probate being opened from the Clerk of Court.

Q: How is the IRS involved in the Probate Process? A: A Personal Representative is responsible for filing (when applicable) the file income tax return of the deceased person as well as an income tax return on behalf of the estate, any necessary gift tax returns for gifts made by the deceased person prior to death, and a federal estate tax return if necessary. A Personal Representative is also responsible for dealing with issues arising from previous tax periods if there are any unresolved issues.

A Personal Representative should seek legal assistance in preparation of federal estate and gift tax returns as these documents usually require complicated calculations and issues of included and excluded property.

Q: How is the Florida Department of Revenue Involved in the Probate Process? A: A Personal Representative’s duties differ based on the deceased person’s date of death.

If the deceased person died before January 1, 2000, a Personal Representative must file a Preliminary Notice and Report with the Florida Department of Revenue.

If the deceased person died after December 31, 1999, and if a federal estate tax return is NOT required to be filed with the IRS, a Personal Representative must record in the public records an Affidavit of No Florida Estate Tax Due. However, if the deceased person died after December 31, 1999, and a federal estate tax return IS required to be filed with the IRS, a Personal Representative must file a Florida estate tax return with the Florida Department of Revenue.

A Personal Representative must ALWAYS send a copy of the probate estate inventory to the Florida Department of Revenue.

Q: What Right do the Surviving Family Members Have in a Decedent’s Probate Estate?A: First and foremost, the laws of Florida protect the deceased person’s surviving spouse. Unless the surviving spouse has signed a valid pre- or post-nuptial agreement, the surviving spouse is entitled to homestead rights, elective share rights, family allowance rights, and exempt property rights.

Second, certain surviving children of the deceased person may also have similar rights including homestead rights, pretermitted child rights, family allowance rights, and exempt property rights.

Trusts Questions

Q: What Are Some Benefits of a Revocable Living Trust?A: The biggest benefit of a Revocable Living Trust is that it helps ensure that assets can be effectively managed even if their owner becomes incapacitated. For some assets, a Revocable Living Trust avoids the need for probate, ensuring privacy and sometimes resulting in a quicker distribution.
Q: If I Have A Trust, Do I Still Need A Will?A: Yes! Some assets like homestead real estate and automobiles are not well-suited for ownership by a trust, and a special kind of Will called a “Pour-Over Will” ensures that all your assets will be administered according to the terms of your Trust.

Wills Questions

Q: What Is A Last Will and Testament?A: A Last Will and Testament is a legal document that addresses how you want your assets handled after your death. This document also names a Personal Representative, who is the person who will be in charge of distributing your assets.
Q: What Happens In Florida If I Don’t Have A Will When I Die?A: If you don’t have a will at the time of your death, your property will be distributed according to the rules written in the Florida statutes, called the “laws of intestacy.”
Q: Can I Name The Guardian For My Minor Children In My Will?A: Yes, you can name a person in your Will who you would prefer to have care and custody over your minor children upon your death BUT if there is another person with legal authority over your children, such as a former spouse, that person may have the right to custody regardless of what you put in your Will.
Q: What Is The Difference Between A Living Will and A Last Will And Testament?A: A Living Will is a legal document that provides for a person’s wishes regarding the use of life-sustaining treatment whereas a Last Will and Testament provides for the distribution of a person’s assets on death.
Q: What Are Some Advantages of Having A Last Will And Testament Done By An Attorney?A: Having an attorney draft your Will typically results in a much more comprehensive document than if you use a standard form. Attorneys can answer your questions and draft the document in a way that meets all your needs and wishes. A Will drafted by an experienced estate planning attorney will address circumstances and concerns you may not have even considered. Also, an attorney can help to reduce the possibility of conflict and ensure that the document meets all legal requirements to be effective.

Estate Planning Questions

Q: What is Estate Planning?A: Estate planning is the process of planning for distribution of someone’s assets after his or her death and during incapacity. The process can include planning for health care and end-of-life decisions. Estate planning is unique to each person’s situation and circumstance.
Q: Who Needs Estate Planning?A: Everyone should have some sort of estate plan. Many people put off estate planning or simply think they don’t need it. Even if you don’t think you have assets, you will still benefit from having an estate plan. If you have minor children, you should definitely have an estate plan. If you want your estate distributed according to your wishes and not by rules imposed by the state, you should have an estate plan.
Q: How Often Should I Review My Estate Plan?A: An estate plan is not permanent. Things can change and life events happen. Estate plans should at least be reviewed at least every 2-3 years. If a major change occurs, plans should be reviewed immediately. Some examples of major changes include: birth, death, marriage, divorce, large increase or decrease in net worth or assets, moving to a different state or the purchase or sale of a business.
Q: What Makes Up My Estate?A: An estate consists of all assets that you possess at the time you die. Some examples are real estate, business interests, personal property, cash, life insurance benefits, retirement plans and IRAs, stocks, and bonds.
Q: What Should An Estate Plan Include?A: Estate plans are very personal and they vary from person to person. However, the typical estate plan includes a Revocable Living Trust, a Last Will and Testament, a Living Will, Designation of Health Care Surrogate, Declaration Naming Preneed Guardian, HIPAA authorization and Durable Power of Attorney.
Q: What Is A Durable Power of Attorney?A: A Durable Power of Attorney is a document giving an agent of your choice the power to make business and financial decisions on your behalf.
Q: What Is A Health Care Surrogate?A: A Health Care Surrogate is an adult who is selected to make healthcare decisions for you when you are unable to make them for yourself.

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