What is Estate Planning and why do I need an estate plan?
Estate planning is the process by which an individual or a family anticipates and arranges for the transfer of their assets in the event of their death. An estate plan’s goal is to preserve the highest amount of wealth possible for the designated beneficiaries and flexibility for the individual during that individual’s life.
Effective estate planning will allow you to avoid the havoc and wasted assets of an unplanned estate, provide you with a sense of security, and provide a measure of personal well-being to your loved ones.
Estate planning is for everyone, regardless of factors like net worth, age or marital status. There are only benefits to be gained by having an estate plan. Without an estate plan, you run the risk of having the state or a judge determine who should inherit from you. This is a long, costly process that can be avoided with estate planning.
What does your Will-based Estate Planning package include?
Our Will-Based Estate Planning Package includes: a Last Will and Testament, Durable Power of Attorney, Living Will, HIPAA Release, and a Designation of Health Care Surrogate. We offer Estate Planning packages to both individuals and married couples.
- A Last Will and Testament, more commonly referred to as a “ Will”, is a legal document that communicates your final wishes to the judge about who should receive your assets at their death (the beneficiaries) and who should be in charge of that process (the personal representative).
- A Durable Power of Attorney designates one or more agents to make financial and legal decisions on your behalf.
- A Designation of Health Care Surrogate appoints one or more agents to make medical decisions for you if you are incapacitated and unable to do so.
- A Living Will is a written statement detailing your wishes regarding life-prolonging procedures under specific circumstances.
- The Health Insurance Portability and Accountability Act, or HIPAA, is a law that protects the confidentiality of medical records and medical information. Our HIPAA Release allows you to one or more agents to access such medical records and information on your behalf, and extends your lifetime by two years in case your records need accessed after death. This is important for medical malpractice and wrongful death claims.
What does your Trust-based Estate Planning package include?
Our Trust-Based Estate Planning package includes a Living Trust, Certificate of Trust, a Last Will & Testament, Durable Power of Attorney, Living Will, HIPAA Release, and a Designation of Health Care Surrogate.
We describe a trust like a basket. Anything you put into the basket can be picked up and carried through time. Inside the basket is a set of instructions to your trustee saying who should get the items in the basket and how. This basket avoids the courts and can begin administration immediately at your passing, or as early as you designate in the trust document.
Technically speaking, a trust is a legal entitlement in property which is held in a fiduciary relationship by one party (the trustee) for the benefit of one or more persons (the beneficiary or beneficiaries).
Furthermore, a trust is a type of property ownership. The individual who has the trust set up is called the “grantor” or the “settlor.” The “legal” owner of the trust property is the trustee, and his name is on any document of title. The person who receives the benefits of ownership, like the right to receive the earnings from the trust’s investments, is the beneficiary.
Are there different kinds of trusts?
There are several different kinds of trusts. Many revocable trusts aim at avoiding probate at death such as a Family Trust, Living Trust, and Intervivios Trust. These types of trusts are all set up and financed while the grantor is still alive and are revocable. The grantor oftentimes names himself or herself as both trustee and beneficiary of these types of trusts. A Testamentary Trust, by comparison, is a trust which takes effect under the terms of a Will, after the grantor has passed. There are many types of irrevocable trusts for asset protection such as a Medicaid Asset Protection Trust (MAPT), Veteran’s Asset Protection Trust (VAPT) Irrevocable Life Insurance Trust (ILIT) and a few singularly focused trusts such as a Gun Trust which is created to own certain firearms or Pet Trust that may provide for pets and their care at your passing.
Why should I create a trust?
Unlike a Last Will & Testament, a trust has the advantage of avoiding probate. Probate is a costly and lengthy legal procedure in which a Judge oversees the transfer of assets.
When an estate is transferred through a Will, the probate court has to validate the Will before the assets are transferred. The probate process can take years. In contract, assets held in a trust are not required to go through probate. While we feel avoiding probate is an attractive attribute of a trust, here are a few other benefits:
- A Living Trust allows your assets to be distributed to your beneficiaries as rapidly as your trust agreement instructs and the taxing authorities permit rather than being required to wait on a judge and statutory time frames as required by probate laws.
- The costliness of probate is completely avoided for all assets that are held in your living trust. Probate can cost 3% or more of the value of the assets going through probate.
- Since a Living Trust is a private agreement, its terms are not made public at your death like the terms of a Will are when it is entered into probate. Only your trustee and beneficiaries are made aware of your assets and intentions.
Who can benefit from a trust?
Anyone can benefit from a trust. Many people mistakenly believe that trusts are only for the wealthy. This is simply not true. A trust can avoid the probate process as we have mentioned above. However, the benefits do not stop there. Beneficiaries can be protected from themselves in a trust. For example, you can set up your trust to prevent distribution to a beneficiary if it would disqualify them from public benefits, if one is facing a divorce, is a minor child or simply is not good at managing money. In the instance of asset protection trusts, the person setting up the trust may also benefit from creditor protection and/or be able to qualify for public benefits that would be impossible without the trust (such as a MAPT or VAPT).
What happens to our family trust in the event of death or divorce?
This all depends on the language in your trust agreement, the types of assets you funded your trust with, and any agreements that may exist between you and your spouse. In the event of death, your trust agreement will designate who should take over as the successor trustee along with when and how assets should be distributed.
Where are my signed original Estate Planning documents kept?
After we have set up your signed Estate Planning documents, we organize them in a personal Estate Planning binder for you and in your own electronic vault.
In your binder are all of your original Estate Planning documents, with the exception of your Last Will and Testament. We keep your original Last Will and Testament in a water-proof, fire-proof safe at our offices and include a copy of it in your binder. We do this because the law requires that your original Will be submitted to the Court for safekeeping within 10 days of death. We do this for our clients at no extra charge.
How do I access my electronic vault?
Once we have uploaded all of your Estate Planning documents onto Dropbox, we send you an e-mail informing you that your electronic vault is ready for access. In the e-mail, we provide you with the website and the username and password that you may use to login. You can use this information to review your Estate Documents whenever you wish.
What happens if someone’s address/phone numbers change?
If someone’s address or phone numbers change, we recommend that you contact us immediately so that we can update our records. We can update your documents to reflect the new addresses or numbers. However, if your agent listed in one or more of your documents has moved out of town or out of state, you may want to update the documents to appoint someone local depending on your circumstances.
Should I give copies of my Will and other estate planning documents to my children and to the trustee/personal representative of my estate?
It is not a requirement, but we recommend you either give copies to your children, let them know where your documents are located, or simply give them our business card and let them know that if anything happens to you, they should contact us.
When should I have my estate planning documents reviewed?
Estate Plans should not be considered permanent. Desires and conditions may change. Estate plans should be reviewed at least every three to five years or if any important change in your life demands instantaneous review. Some of these changes might be:
- The birth, divorce, marriage, disability or death of you or a beneficiary
- A large increase or decrease of your or a beneficiary’s net worth
- You move to another state
- There is a change in tax law
- There is a substantial change in the types of assets you own
- You’ve purchased or sold a business or real property
What is Probate in Florida?
A process overseen by the court to identify and gather the assets of the person who passed, pay any remaining taxes, claims by creditors, and expenses; and distributing any leftover assets to the person’s beneficiaries.
There are two types of Probate Administration: Formal and Summary.
Formal is the main form of probate in Florida. If the person who has passed, legally called the “decedent”, had property in their name alone with an overall value above $75,000, died within the last two years, or had a Will that states formal administration is necessary, then formal administration is the route required. A Personal Representative is named based on who is appointed in the Will (so long as the Will is valid and the person qualifies to serve as a Personal Representative under state law) or, if the decedent died without a Will, also known as dying intestate, based on Florida law and the order of priority it lays out.
To serve as an individual Personal Representative, the person must be a Florida resident or a close relative of the decedent. That person must also be at least 18 years old, not be considered a felon, and have the capacity to hold the position. If all of these criteria are met, and there is a valid Will not being contested or challenged, the named Personal Representative may serve and be appointed by the judge.
If there is no Will, Florida intestate laws provide that the spouse is first in line to serve as Personal Representative. If the decedent had no spouse, then next would be children. It is best for the child who lives locally to serve, if possible, as it may help to prevent the estate from being required to obtain a Personal Representatives bond, adding to the cost of probate.
A Notice to Creditors must be published in the circulation of the county of the decedent (one a week for two consecutive weeks). The point of this publication is to provide notice to all unknown creditors or those for which there is no known address. The publication provides any creditors with three months to submit statements of claims to the probate court, or the unknown creditor is forever barred from making a claim. Known creditors have the longer of thirty days from service to them to three months from the date of the publication. Any claims made against the estate must be settled either through payment, settlement, or an objection through the court.
The Personal Representative is in charge of gathering all the estate assets. They protect these assets and preserve them for the beneficiaries. Taxes will need to be paid for the decedents final tax return, this includes the average 1040 tax return and possibly the 1041 tax return for estate or trust income. If the decedent has a net worth over $11.5 million as of 2019, then a 706 estate tax return would need to be filed, regardless of whether the assets were in the probate estate. The Personal Representative is in charge of handling these taxes, whether it be from hiring a professional or doing it themselves.
What estate assets are subject to probate? Which assets are not?
Probate assets can be characterized as those solely in the decedent’s name upon his or her death. Assets owned so they will pass through law such as shared property (joint tenants with rights of survivorship), bank accounts with transfer or pay on death documents, and those assets associated with contracts, such as life insurance proceeds, are not probate assets. All of these pass to a named beneficiary if there is one rather than going to the estate.
Why is probate required?
Probate is necessary to tie up and loose ends of the decedent’s affairs and properly retitle assets to whom they should pass. The decedent has to power to make decisions regarding their property during life that is in their sole name by leaving a Will.
How can you avoid probate?
One of the most common ways to avoid Florida probate is to have property funded in a revocable trust. This trust passes the property to a named beneficiary just like the above mentioned assets that do not require probate.
How should you title your life insurance policy and can it be used to help with estate taxes?
In order to avoid a life insurance policy from going through probate, a beneficiary should be listed with the life insurance company. Tax laws have changed in regard to life insurance policies and estate planning, the SECURE Act is important to learn more about for this subject.
What is a Will?
A Will is a writing signed by the decedent who, at the time of signing, was 18 years or older and had the mental capacity necessary to create the document. The Will must be signed by two witnesses and a notary under Florida law. A Will can create a trust as well, but the Will itself and anything within it being devised must go through probate. The Will is only effective once the executor passes.
Are Probate details kept private?
No, the details become public record with limited privacy protections. This is just another reason that a trust is often a helpful estate planning tool as the distribution and property of the trust is a private matter.
Who receives the estate property when there is no Will?
Top of the list would be the surviving spouse and any descendants of the decedent. If there are no descendants then the surviving spouse receives everything.
If there is no spouse and no descendants, then it goes to the parents of the decedent who are still living. If there are no living parents, then it goes to any siblings of the decedent.
All of the above have exceptions, intestate probate administration depends on the individual decedent and can change with every case. This is part of the reason that it is important to get an attorney involved in the process.
Who is involved in probate?
Some people included in the probate process are: attorney for the estate and Personal Representative; the Personal Representative; the Clerk of the Court; the Circuit Court Judge; Creditors of the estate (also known as Claimants); Relatives, beneficiaries, and heirs; Florida Department of Revenue; and the IRS.
Where are probate papers filed?
All papers are filed with the Clerk of Court in the county where the probate proceedings are taking place and any county the decedent owned property.
Who oversees the probate process?
A circuit court judge oversees the probate administration for the county in which the decedent lived. This judge issues Letters of Administration and appoints the Personal Representative. This judge also holds any hearings necessary during the probate process, such as when a Will is contested.
When the Will contains a provision naming a particular attorney, is it binding on the Personal Representative?
No, a statement such as this is a preference, not a requirement. The Personal Representative has full discretion in choosing who they wish to hire to represent themselves and the estate. The probate process can last a minimum of a few months, so it is important the Personal Representative choose and attorney they are comfortable with and have confidence in.
Are there are restrictions on the person passing their property to others?
Yes, there are some restrictions under Florida law. Unless there is a pre or post nuptial agreement, a surviving spouse has rights to the home shared with the decedent and rights to an “elective share” of the estate. This share is equivalent to 30% of the decedent spouses property. The children of the couple would receive the remainder interest in the estate after the passing of the second spouse. If there are minor children, but no spouse, the property goes to the children.
If a person passes after being remarried and fails to update their Will, the spouse they were married to at the time of their passing will receive the full estate if there are no children of the decedent. If there are children of the decedent, then the spouse receives at least fifty percent of the estate.
Is a No Contest Clause enforceable?
No, Florida law states that a no-contest clause in a Will is not enforceable. This means that a provision stating that a beneficiary loses their share of the property that was provided for them if they contest the Will is not going to be upheld in probate court.
What happens when a Will is contested? What are some reasons for contesting a Florida Will?
Florida Wills can be contested. Common reasons to contest a Will include if a beneficiary believed the decedent lacked capacity when they executed the Will, undue influence over the decedent while they were making the Will, or fraud, duress, or mistake. The contesting, however, cannot be done until the executor of the Will passes.
What if you are a Florida resident who owns property in others states?
Real Property in another state would need to go through something called ancillary probate in the state where the real property lies. Any ancillary proceeding would need an attorney in each state where the decedent solely owned the real property. This is a situation where a trust should be considered as a possible way to avoid the property needing probate in more than one state.
Does the Personal Representative get a fee? Do taxes impact the fee?
The Personal Representative is allowed to receive a fee under Florida law. The reasonable fee under Florida law is one to three percent of the probate estate. The fee the Personal Representative receives, however, is taxable income and is included on their ordinary tax return. If the money is received as inheritance it would likely not be taxable. Only an increase in value following the date of death would be taxable as income tax.
Does divorce have any effect on a Will?
Yes, most often, any provision in the Will made to benefit the ex-spouse will no longer be enforceable. The Will, following the divorce, essentially is looked at as if the former spouse died unless the Will itself or the divorce agreement expressly states otherwise.
Do you need an attorney for all Florida probate administration?
Florida almost always requires an attorney to be involved in the probate process. An attorney is required to be with the Personal Representative or estate for all probate matters with the exception of the above mentioned disposition of personal property without administration.
Even in the most basic of probate administrations, legal issues are likely present. Due to this Florida law requires an attorney to be involved. The attorney for the Personal Representative is tasked with advising them on their rights and duties under the law, and represents them in proceedings involving the estate. This attorney represents the estate, not the beneficiaries.
While Summary and Formal are the main forms of probate administration, Florida does have the option of a Non-administration proceeding called a “Disposition of Personal Property without Administration”.