WILLS, TRUSTS, AND PROBATE

Estate Planning is the process of establishing a plan for the security and distribution of your assets in the event of your death or disability. Contrary to popular belief, Estate Planning is not only for the wealthy and elderly, it is for anyone including you.  If you plan in advance, you can have your estate distributed according to your preferences.  However, in the absence of any planning, your estate will be distributed according to the Florida laws of intestacy, and this may not reflect your preferences.

In developing an Estate Plan you may want to ask yourself the following questions?

  • How will my assets be distributed when I die?
  • Do I need a will?
  • What is a living will?
  • What happens when there is no will?
  • What is a trust, is it a substitute for a will?
  • Is a life insurance a substitute for a will?
  • If I die who will be named guardian of my minor children?
  • What is probate?
  • What is a revocable trust?
  • Who will make my health care decisions if I am unable to make them?
  • Who will sign legal documents for me if I am unable to?
  • If I am incapacitated and cannot communicate my own desires, how can my doctors follow my wishes regarding my medical care and life-prolonging procedures?

Our attorneys can assist you in answering the above questions and or dispel any doubts  you may have in your answers.

What is Probate?

Probate is the court-supervised administration of a decedent’s estate.  It is a process created by state law to transfer assets from the decedent to the beneficiaries.  A personal representative is appointed to handle the estate administration.  The personal representative is accountable to the court as well as the beneficiaries. For probate estates having less than $75,000 of non-exempt assets, Florida law provides a simplified probate procedure known as summary administration.

Not all assets owned by a decedent require probate.  Assets owned jointly “as tenants by the entireties” with a spouse, or “with rights of survivorship” will pass to the surviving owner without probate.  This is also true for assets with designated beneficiaries, such as a life insurance, retirement accounts, annuities, bank accounts designated as “pay on death” or “in trust for” a named beneficiary.  Assets held in a trust also avoid probate.

There are many options available when considering estate planning. Some of those are indicated below:

A will is a written document that controls how your assets will be distributed at your death.  You the maker of the will (called the testator) must be at least 18 years old, you must be of sound mind at the time you sign the will, your will must be written, and your will must be witnessed and notarized in the special manner provided by law for wills.

No will becomes final until the death of the testator, and it may be changed or added to by the testator by drawing a new will or by a “codicil” which is simply a separately written addition or amendment executed with the same formalities as a will. A will’s terms can not be changed by writing something in or crossing something out after the will is executed.

This document can assist in handling your property if you become incapacitated, without having to open a guardianship proceeding in court.  This is especially valuable for paying your bills and protecting your assets.  A power of attorney is no longer valid or enforceable after your death.

Florida law provides for a written declaration by an individual specifying your wishes regarding the medical care you want to receive in the event you are incapacitated and cannot communicate your own desires.  In this document you include your specific desires as to what medical and life-prolonging procedures you want or do not want.  Today modern science is able to keep people alive even if they are brain dead.  You may not wish to live under said conditions without some quality of life, and a properly drafted document will give directions to your doctors to disconnect you from life support machines.

Florida law allows you to designate a person to make health care decisions for you when you may not be able to do so.  In this document your decisions can be as specific or as general as you want.  Included in this important appointment is the power to decide when to withdraw medical procedures.

Florida law allows you to designate a person who could be appointed guardian over you should you become incapacitated and/or over your children should you become incapacitated or upon your death.  If you fail to have a guardian, the Court will do so for you if it becomes necessary.

A revocable trust is a document (the “trust agreement”) created by you to manage your assets during your lifetime, and distribute the remaining assets after your death.  The person who creates a trust is called the “grantor” or “settlor”.  The person responsible for the management of the trust assets is the “trustee”.  You can serve as trustee, or you may appoint another person, bank or trust company to serve as your trustee. The trust is “revocable” since you may modify or terminate the trust during your lifetime, as long as you are not incapacitated.

Most trust agreements allow the grantor to withdraw money or assets from the trust at any time, and in any amount.  If you become incapacitated, the trustee is authorized to continue to manage your trust assets, pay your bills, and make investment decisions.  This may avoid the need for a court-appointed guardian of your property.  This is one of the advantages of a revocable trust.

Upon your death, the trustee (or your successor if you were the initial trustee) is responsible for paying all claims, and then distribute the assets to the beneficiaries that you have described in the trust agreement.

The above list is not all inclusive.  You may require additional documents depending on your particular needs or concerns.

Please contact us for a free consultation with our dedicated and knowledgeable attorneys to help you with your legal needs. To schedule a free consultation with one of our attorneys, call us today at (305) 442-1439. To reach us via email, please fill out our online contact form available under the “Contact Us” tab, and a member of our staff will contact you promptly. We look forward to serving you.

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