WILLS, PROBATE, ESTATES & TRUSTS
Years pass quickly and the future is uncertain which makes planning important. Having a will is important for planning the disposition of your estate to your heirs and giving you the peace of mind knowing your desires have been expressed. You can decide who your property will pass to. If you do not have a will state law will decide who your property will pass to which may be different that what you desire. You can make gifts of property to certain designated persons rather than have the various heirs disagree with each other regarding which person will receive which property. If you already have a will you may need to change it due to life events that change your circumstances such as the death of a spouse or heir, remarriage, the birth of a child and other events that change the family situation. Jim Sears is experienced in drafting wills that meet the needs of his clients.
When your will is written there are other important documents to consider at the same time. These include a Durable Power of Attorney, a Living Will and a Designation of Health Care Surrogate. When a husband and wife are considering their wills it is often a good idea to obtain a reciprocal planning package that includes all these documents for both. All these documents can be signed at one time to implement your plan for the uncertainties of the future.
You may also consider including a trust for minor children. In it you can appoint who you wish to be the trustee to administer the assets of the trust until they become adults and to designate who will be their guardian in the event of your passing before they become adults. Sometimes these will be different people depending on who is best suited for each position whether it be parenting skills or business sense. If you do not designate these people in your will the court will appoint the persons. The persons appointed may not be the ones you would have chosen which makes it more important to have a will expressing your intentions.
A trust may also be used separate from a will to pass assets to heirs outside of the probate process. A trust can be revocable or irrevocable. It can also be used for special needs or charity. Another consideration is a spendthrift trust for children who may not be ready to handle their own financial matters when they become adults.
Probate is the process by which your estate is administered to pass and distribute the ownership of your property to your heirs and to take care of the claims of any creditors there may be. It begins with locating the will and filing it with the court. That is followed by filing a Petition for Administration and the issuance of Letters of Administration. There are different types of probates. A formal administration is for larger estates and ones that may have issues such as homestead, business interests, disputed claims, elective share, family allowance, exempt property, premarital agreements, children from former marriages or a person who became a spouse of the deceased person after the will was written. Some property may pass outside of probate such as property jointly owned with a spouse or another person such a real estate, stocks and bonds, mutual funds, bank accounts, certificates of deposit, an IRA or life insurance. The probate is typically concluded by filing a final tax return, a distribution of the assets, final accounting and discharge. If you have been named as a personal representative (executor) of an estate you will need an attorney to guide you through the process. We will be happy to assist you with that.
A summary administration is for smaller less complicated estates where the value of the property subject to administration is less than $75,000.00 or the decedent has been dead for more that two years..
Sometimes a probate case becomes contested and is litigated. While that is unfortunate sometimes it cannot be avoided. Jim has handled cases involving questions whether the actions of a personal representative, curator or guardian were appropriate.
Contact our office to schedule an appointment for a confidential consultation in a relaxed and comfortable setting to discuss your goals, plan for the uncertainties of the future, desires for your estate as well as any special issues or questions there may be.
Mediation is a process by which an impartial third party facilitates resolution of disputes without deciding what the resolution should be. It is informal and non-adversarial. The objective is to reach a mutually acceptable agreement. Having been a mediator over 14 years and an attorney representing clients in lawsuits for 35 years, Jim Sears brings a wealth of experience to the mediation process.
The mediation process is confidential and the communications are not admissible in court with some exceptions spelled out in the statutes. The confidentially encourages everyone to communicate openly and candidly to solve problems.
Trials are uncertain and expensive. No one has a guarantee they are going to win. The outcome of a trial in unpredictable. Courts do not agree with each other. Appellate courts reverse trial courts and other appellate courts. People disagree with the decisions made by the courts. The parties to the lawsuit have no control over the outcome when the case is turned over to a judge or jury for decision. Everyone involved faces risks if the case goes to trial. Those risks can be overcome by the benefits of the certainty a settlement provides. The parties have the most control over the outcome when they reach agreement on the terms of a settlement. In some cases the settlement can provide a solution that cannot be granted by the court. The mediation process is in effect “risk management.”
A party in mediation does more than in the trial. While both involve being an advocate for their point of view, the mediation also involves each party evaluating their case and focusing on solutions other than going to trial. It is not necessary to reach an agreement on who is right or wrong in order to settle the case. What is needed to reach an agreement is everyone approaching the process with an open mind, everyone being flexible and everyone thinking like a problem solver. Everyone in the mediation needs to be actively involved in the process rather than being a spectator. The focus in on solutions rather than fault. The definition of a solution is something that works for everyone.
While it takes everyone involved to agree to settle a case it takes only one person to prevent it from settling. Sometimes people have unrealistic expectations or are in denial about the problems in their case. Sometimes a person is putting up obstacles or roadblocks to sabotage the settlement efforts. Jim is aware of the human factors that influence the process and is experienced giving people a “reality check” to help them evaluate their cases. Each party owes it to themselves to frankly and candidly acknowledge the problems and weaknesses in their case. If they do not they are doing a big disservice to themselves. If a party does not consider all points of view, even if they disagree with them, they are not making an informed decision of what to do in the case. An uninformed decision is not likely to be the best decision.
Jim works hard using common sense and his experience as a litigator for 41 years to help people manage the risks they are facing, evaluate their case, consider the worst case scenario they may not have realized, explore alternatives, understand the decision making process, consider the cost effectiveness of what is happening, determine the best use of their resources and make an informed decision whether to settle a case or take it to trial.
Emotions are often riding high in cases. Progress is made by focusing on the problem and solutions rather than on fault, people and personalities. This is separating the people from the problem. If everyone approaches the process with an open mind, is flexible and thinks like a problem solver the likelihood of a settlement is very high.
CIVIL PRACTICE AND LITIGATION
Currently Jim's civil practice is primarily general civil, business, real property and commercial litigation and mediation. His practice has included the following areas of law: administrative, banking, collections, contribution, construction litigation, consumer, contracts, conversion, corporations, constructive trust, deceptive and unfair trade practices, employment, equitable subrogation, evictions, fraud, indemnity (contractual and common law), insurance, interpleader, landlord/tenant, leases (commercial and residential), mechanic's/construction liens, mortgage foreclosure, motor vehicle dealers, partnership, probate (administration and litigation involving surcharge actions against a personal representative and curators), real property litigation and transactions, replevin, sales, secured transactions, surety bond claims and wills.
SURETY BOND CLAIMS AND LITIGATION
The surety bond work has involved a wide variety of bonds including construction (payment and performance, mechanic’s liens, transfer of liens), probate (personal representative, curator, guardian), motor vehicle dealers and notaries. The motor vehicle dealer bond cases have included disputes between new and used car dealers, retail customers, auctions, lenders and bonding companies. The disputes have included but are not limited to agency questions, civil theft, non-payment of vehicles, odometer rollbacks, stolen vehicles, rebuilt and for-hire vehicles, altered VINs, fraud, deceptive and unfair trade practices, deceptive advertising, repossession/conversion, breach of oral and written contracts, lease irregularities, liens not paid, bad checks or drafts, failure to deliver title, breach of warranty, breach of consignment agreement, indemnity, violations of The Motor Vehicle Retail Sales Finance Act, the Florida Motor Vehicle Repair Act, Florida Statute Chapters 319 (Title Certificates) and 320 (Motor Vehicle Licenses), and the Code of Federal Regulations relating to Truth In Lending (Regulation Z), and Federal Trade Commission rules relating to Deceptive Pricing, the Used Motor Vehicle Trade Regulation Rule and the Magnuson-Moss Warranty Act.