John Edgar Sherrard, P.A

Want to Avoid Probate Litigation? Here’s 3 Ways How!

Want to Avoid Probate Litigation? Here’s 3 Ways How!


Settling an estate through the probate process is not always a positive experience. Many individuals and their affected survivors want to protect as much family wealth as possible, and probate can make some assets vulnerable. Luckily, there are a few legal instruments that can be established to provide asset protection, and having an experienced Stuart probate attorney like John Edgar Sherrard PA initiating the process can be a very valuable advantage. Here are a few steps that can be taken before an untimely death occurs to avoid exposing assets and limiting tax responsibilities.

1.         Establish a Living Trust

The first method of avoiding the probate process is setting up a living trust that effectively distributes real and/or personal property before death. A trust designates a trustee, which can still be the individual establishing the trust. The trust may be revocable, which allows the modification or revocation of the trust during the lifetime of the person establishing the trust. However, there will be no effect on avoiding an estate tax, if one is due, because of the revocability of the trust. Irrevocable trusts transfer ownership of the property completely to the trustee other than the current asset holder, but, once established and funded, no modifications can be made, nor can it be revoked. This method may avoid estate tax, if an estate tax liability exists, but it can be tricky, and it is always important to have an experienced probate lawyer and accountant involved to ensure that the trust effectively protects the assets funding the trust.

2.         Establish a Legally Binding Will

A last will and testament works well for many individuals when it is comprehensive and executed with all of the required procedures to ensure that it is legally binding. Failure to follow the statutory requirements of execution of the will can render the will invalid. Florida law also permits a separate writing for distribution of tangible personal property, if it Is referenced in the will. This allows the Testator to change the distribution of designated tangible personal property outside the will without having to redraft the will or draft a codicil, thus saving fees and costs.

3.         Joint Property Ownership, Designation of Beneficiaries and Titling of Accounts

Titling property as husband and wife or as joint tenants with right of survivorship causes the property to pass to the survivor at the instant of death without the need for probating that property.  Also, providing primary and/or secondary beneficiaries for any account that permits the designation of a beneficiary (i.e. life insurance, 401k, etc.) allows for that asset to pass to the designated beneficiary (ies) without the need for probate. In addition to titling bank accounts, certificates of deposit and other stock or financial accounts as joint with right of survivorship, you can keep the account in the sole name of the owner, but provide that the account is “payable on death (POD)” or “transferred on death (TOD)” to an individual or individuals and those accounts will pass to the named individual(s) upon death without requiring probate.

The above information is effective in avoiding probate, but it Is always important to have an experienced attorney and often an accountant to guide you in the process and to clarify any issues that are unique to your estate plan. Please consider using the services of John Edgar Sherrard PA in your estate planning needs.


Ten Basic Things You Ought To Know About Getting a Divorce in Florida


If you are thinking of getting a divorce, there are a few things you ought to know before consulting John Edgar Sherrard PA. Knowledge of the legal basics on divorce in Florida will save you time and money.

One: What is Required to File For Divorce?

One of the spouses must be a resident of Florida for at least six months before date of filing. Additionally, you must confirm that the marriage is irretrievably broken and cannot be resumed.

Two: The Process of Filing For Divorce

Your dissolution of marriage action starts when your divorce attorney files a “petition for dissolution of marriage” with the family division of the local circuit court. The documents will be served upon your spouse. If you and your spouse settle the terms of dividing property, responsibilities for your children, and debt, the divorce may be finalized without trial. Otherwise, you will proceed with production of documents, mediation and a trial will be held to resolve these matters.

Three: Marital Assets and Liabilities

Marital assets and liabilities are divided equitably in the event of a divorce, and generally on a 50/50 basis. However, non-marital assets are not subject to equitable distribution.

Four: Dividing Marital Property

The judge will bear in mind the economic circumstances of the spouses and their contributions towards the marriage. Assets are divided equally unless there are specific, reasonable grounds for unequal distribution, which is an extraordinary remedy.

Five: Alimony

When deciding whether to grant alimony, the courts will consider the standard of living during the marriage, the age and health condition of the spouses, and the duration of the marriage. The court must determine that one spouse has a financial need and the other has the financial ability to meet that need. If that is determined, the court must then decide the duration and amount of the spousal support.

Six: Parental Responsibility and Timesharing

Florida no longer refers to “custody” of children. Rather, the court decides upon the responsibility and timesharing schedules of each parent with their children.  If you and your former spouse cannot agree on these issues, the decision is left to the court. The judge will decide on parental responsibility and timesharing based on the best interests of the child.

Seven: Child Support

When determining child support, the court reviews the timesharing schedule, the incomes of both parents, child care and health costs and utilizes a Guideline to calculate child support. The judge will rule on an amount for child support based on the statutory guideline provisions.

Eight: Documents Required

For the court to divide your assets fairly and determine an amount for support, you are required to file a financial affidavit and present records of tax returns, bank statements, mortgage documents, an inventory of family and household possessions, and other documents necessary to support your request for equitable division, parental responsibility, spousal support and/or fees and cost of the divorce.

Nine: Marital Debts

Debts incurred by either party during the marriage will be divided equitably, and generally, equally. However, debts incurred before the marriage are not considered marital debts and will remain the debt of the party incurring it.

Ten: Taxes

The Court must consider the effect of taxes when ruling on equitable distribution of assets and debts. Also, a divorce will change your tax filing status. The recent federal tax legislation has dramatically changed the tax aspects of divorces going forward, so the services of a certified public accountant is always recommended to advise you of the tax effects of your divorce.




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John Edgar Sherrard

John Edgar Sherrard is a highly respected and experienced attorney who has practiced law on the Treasure Coast since 1974. He has been Florida Bar board certified in Family Law since 1985 and in Real Estate Law since 1987. In 2008, he received his certification in Family Mediation and has since specialized in resolving family law cases of all types. In addition to these specialized areas, Mr. Sherrard has assisted clients in wills, estates and trusts and has engaged in contract law litigation throughout his career.