15701 S. Tamiami Trail, Fort Myers, FL 33908

last-will-and-testamentEstate Planning, Probate & Probate Litigation


Your Source for Estate Planning, Probate & Probate Litigation Attorneys in Fort Myers and Naples, Florida

The Law Office of Kevin F. Jursinski & Associates provides experienced, personalized legal representation to business and individual clients with real estate law interests throughout Florida.

The AV Preeminent® Rated Law Office of Kevin F. Jursinski & Associates is comprised of some of the highest credentialed attorneys in the state of Florida.  Principle Attorney Kevin F. Jursinski is triple-board certified by the Florida Bar in Real Estate, Business Litigation and Construction Law.  He is the only attorney in the state, out of 101,000 attorneys, who is Florida Board Certified in these areas simultaneously.

Firm Partner, Kara Jursinski Murphy is a Master of Laws (LL.M.) in Real Property Development and Attorney James W. McQuade is a Master of Laws (LL.M.) in Estate Planning and Probate. An LL.M. is the highest legal degree obtainable in Florida.  Both Attorneys Murphy and McQuade earned their LL.M. degrees from the University of Miami.


ESTATE PLANNING:
WHERE THERE'S A WILL, THERE'S A WAYsm

Estate planning in Florida is a process that involves a variety of tools to manage your property and to provide for the smooth distribution of your assets and care of loved ones with minimal tax consequences and costs.

Every person has an estate and it's comprised of any assets you have including your home, car, money, investments and personal effects.  You can prepare for the future of your estate when you die by providing instructions on how the assets will be divided and to whom will receive those assets.  That is an Estate Plan. An Estate Plan is for everyone regardless of age or income level.

An Estate Plan will also include instructions for/to:

  • Include instructions for passing your values (religion, education, hard work, etc.) in addition to your valuables.
  • Your care if you become disabled before you die (a Living Will).
  • Name a guardian and an inheritance manager for minor children.
  • Provide for family members with special needs without disrupting government benefits.
  • Provide for loved ones who might be irresponsible with money or who may need future protection from creditors or divorce.
  • Include life insurance to provide for your family at your death, disability income insurance to replace your income if you cannot work due to illness or injury, and long-term care insurance to help pay for your care in case of an extended illness or injury.
  • Provide for the transfer of your business at your retirement, disability, or death.
  • Minimize taxes, court costs, and unnecessary legal fees.
  • Be an ongoing process, not a one-time event. Your plan should be reviewed and updated as your family and financial situations (and laws) change over your lifetime.

 A LIVING WILL

The Florida Legislature has recognized that every competent adult has the fundamental right to self-determination regarding decisions pertaining to his or her own health, including the right to choose or refuse medical treatment or procedures which would only prolong life when a terminal condition exists.  To ensure that this right is not lost or diminished by virtues of later physical or mental incapacity, the Legislature  had established a procedure within the Florida Statutes (Chapter 765) allowing a person to plan for incapacity, and if desired, to designate another person to act on his or her behalf and make necessary medical decisions upon such incapacity.

The Attorneys at the Law Office of Kevin F. Jursinski & Associates can help you create your living will and answer any questions you may have about creating the legal document.

PROBATE & PROBATE LITIGATION

Puzzled by Probate?sm  We Can Help!
Turn to the Attorneys at the Law Office of Kevin F. Jursinski & Associates to handle a deceased 
loved one's estate when it must be probated.

When you are faced with the death of a loved one, it is an emotional experience and often an event that lasts with you the rest of your life.

On top such an emotional event, it is sometimes necessary to put that emotion aside and deal in business-like manner since you may also be appointed the personal representative of the decedent’s estate.

This means that you will need to act in a fiduciary manner and formally administer the Last Will & Testament of the decedent. That task, coupled with the emotion impact of a loved one’s death, can tax any person.  If you are appointed as the personal representative of the estate, you will be responsible for carrying out the provisions of the will, which includes collecting the decedent's assets, paying any debts or taxes owed, filing the decedent's final tax returns, distributing the remaining assets and inventory in accordance with the provisions of the will, and notifying companies that need to know about the death.

In addition to the task of handling the will you may also be required to administer the decedent’s trust if you are likewise appointed Trustee of such trust. The Trustee is responsible for implementing the terms of the trust and filing a Notice of Trust with the court. Even though an estate may not require probate administration in all instances, all estates must be settled.  There will be documents to be reviewed, executed and filed, debts and taxes to be identified and settled and assets to be distributed.

The attorneys at the AV-rated law firm of Kevin F Jursinski and Associates have the experience to address issues regarding real property issues, business issues, debt resolution and other matters arising in the probate of an estate. We also keep in mind the sensitive, emotional issue that are often attendant with probate matter.

Our attorneys will help guide you through all aspects of estate and trust administration. We will diligently represent you and the estate and assist you in fulfilling your fiduciary duty as personal representative of the estate throughout the probate process which includes:

  • Meeting with the personal representative and any beneficiaries that request information.
  • Review and submittal of the will to probate
  • Qualification of the fiduciaries involved
  • Preparation of the inventory of the estate
  • Preparation of an accounting
  • Collecting Assets
  • Notifying creditors
  • Resolving outstanding claims and estate bills
  • Addressing any estate tax issues and if necessary retaining additional professionals to assist in tax related matters


Florida Probate Litigation and Florida Will Contest Information

Contesting the enforcement of a will is a cause of action in which a formal objection is made by an heir, beneficiary or a person claiming standing to assert such action.  The Will Contest cause of action fundamentally seeks to challenge the validity of a decedent’s will asserting that the will, even though purportedly executed by the decedent, does not reflect the decedent’s intent. The will may challenge the will in its entirety or only as to a portion of the will.

Pursuant to Florida Law and explicitly in the Florida statutes a provision in a will seeking to prevent a Florida Will Contest is not enforceable. This is done as a matter of public policy. Florida Law also provides that a Florida Will Contest cannot be brought prior to a person dying. This also makes sense as a will has no legal effect until somebody has died and the will can be admitting to probate court.

There are two fundamental reasons to support a contest of a will in Florida:

  • Lack of Mental Capacity.
  • Undue Influence upon the Testator (the person making the will) at the time of its execution.

Provided that the Testator had the mental capacity to read and execute the will, which is generally summarized as follows:

The Testator:

  • Knows that he/she is executing their last will and testament also referred to as having “testamentary capacity”
  • Knows who their natural heirs are sometimes referred to the natural beneficiaries of the decedent’s estate
  • Is not being coerced or pressured into making certain provisions in the will to favor one person or entity

Then in such event, the Testator or person can provide for their estate to be transferred to anybody (or entity) they want for any reason they want.

Testamentary capacity for purposes of determining the validity of a will is often defined as the  the ability of the Testator to understand generally the nature and extent of one’s property, the relationship of those persons or entities who would be the natural object(s) of the Testator’s bounty and the legal effect of creating the will.

The cause of action can never be barred by language drafted into the will.  Such language is prohibited by a Florida law and even if such language appears in a will, a Florida court cannot enforce such directive that the will could not be challenged. The will contest also can only be asserted after the death of the testator (the person making the will).

“Testamentary Capacity” is one basis to challenge the enforceability of a will.  This often occurs when a will is made in near proximity to the death of the Testator.  In situations such as where the Testator was an elderly person, sick, heavily medicated or simply not able to function at full capacity then a question arises as to whether the Testator possessed testamentary capacity to execute a valid will. Whether a Testator has the requisite testamentary capacity is determined at the time of the execution of the will or if applicable, at the time a testamentary trust is executed.  It can be demonstrated that a person who is in a situation where they may not have full testamentary capacity at all times, may in fact at the time of reviewing and executing the will, possess such testamentary capacity since that person has a lucid moment where they are alert, understand what they are doing and therefore it can be established that at the time of the execution of the will, and notwithstanding other infirmities, they did possess testamentary capacity.

“Undue Influence” is another basis to challenge basis to challenge the enforceability of a will.   Undue Influence under Florida law means that the testator was so controlled by persuasion, pressure, or coercion by the actions of another person or persons that the Testator was unable to act voluntarily of his/her own accord. As such, the will can be challenged and determined to be invalid.

The attorneys at the AV-rated law firm of Kevin F. Jursinski & Associates can meet with you and discuss the specific situation affecting the will in question and determine if a valid legal basis exists to challenge a will or obtain other relief.  Our firm has the experience and skill to assist you through every step of the process with sensitivity and integrity to honor the wishes of the decedent and bring about an appropriate and final resolution and disposition of the estate.

Florida Trust Litigation

From the standpoint of estate planning, trusts are often used by many individuals who are seeking to avoid the courtroom since trusts can provide for distribution of assets at death (as well as during one’s lifetime) and thereby avoid the need for a will which would necessitate probating through the courts.

An appropriate estate plan can provide a format so that individuals who own property, either real estate or personal property, can establish a trust or trusts to hold their assets in such a way that at the time of their deaths, little if any property was left in their estate that would be subject to probate or to the provisions of a Last Will and Testament. In doing so, they avoided the probate court and save their beneficiaries time, money and aggravation and the significant stress and anxiety of litigation such as a will contest.

Trusts, however, are not an absolute guarantee that litigation will not occur.  Causes of action exist when trustees, beneficiaries, or others with an interest in the trust’s assets will challenge a trust, the actions of a trustee, or the validity of the trust itself and litigation will ensue. 

Florida Trust Litigation involves the resolution of trust disputes and challenges to the validity of a trust. Some potential cause of action are:

  • Mistake in Execution – an express trust (one that is written) must be executed in conformance with Florida Statute §737.111. If this statute is not followed, the trust may not be recognized under Florida law.
  • Undue Influence - an undue influence claim challenges whether the person making the Trust did so freely and without being coerced by a person who was in a position of confidence (trust) and control. This concept is familiar to the standard set forth in undue influence in the creation of a will.
  • Lack of Capacity – This is similar to a claim in a will contest when it is asserted that a Testator did not have the mental capacity (“Testamentary Capacity’ to make a will. In Trust litigation this same concept is applied and  a lack of capacity claim may be asserted based upon the belief that at the time the Trust was executed the person making the Trust did not have the requisite mental ability to understand: 

a)  the amount and nature of his property;

 b) the family members and loved ones who would ordinary receive such property

 c) how the Trust functions to dispose of such property. 

 The standard for “testamentary capacity” is not as high as general competency. A person need only understand the nature and extent of his assets and the natural objects of his bounty (his family).

 Lack of capacity to create  a trust occur in situations such as where the Settlor (the person creating the trust) was an elderly person, sick, heavily medicated or simply not able to function at full capacity then a question arises as to whether the Testator possessed testamentary capacity to execute a valid will. Whether a Testator has the requisite testamentary capacity is determined at the time of the execution at the time the trust in question is executed

 The attorneys at the AV rated law firm of Kevin F. Jursinski and Associates can meet with you and discuss the specific situation affecting the trust in question and determine if a valid legal basis exists to challenge a trust or obtain other relief.  Our firm has the experience and skill to assist you through every step of the process with sensitivity and integrity to honor the wishes of the Settlor and bring about in an appropriate and final resolution and disposition of the estate.

 Call us at (239) 337-1147  to discuss your Estate Planning, Living Will and/or Probate needs.

 

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Law Office of Kevin F. Jursinski & Associates
15701 S. Tamiami Trail
Fort Myers, FL, 33908 USA
239.337.1147