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What is
an "estate"?
An "estate" consists of the property owned or controlled
by a person, including debts. A person’s estate consists
of all of his or her property and possessions, including
bank accounts, real estate, furniture, automobiles,
stocks, bonds, life insurance policies, pensions and
death benefits. Every adult person has an estate because
they have some property, regardless of its market value.
What is estate planning?
Estate Planning is a process to design a strategy and
prepare documents to conserve, protect, and distribute
estate assets before and after death for the benefit of
loved ones.
Why do I need to plan?
An estate plan let’s you decide who will get your
property after your death as well as make decisions
regarding your health care treatment and plan for
disability. There are also many other reasons to plan
your estate besides property distribution, such as care
of a child or spouse, care of pets, tax avoidance,
probate avoidance, charitable giving, or disinheritance
of an heir.
What are some typical estate planning documents?
A Will, a health care surrogate form, a “living” will, a
durable power of attorney form and a “living” trust.
Each of these documents are discussed in these FAQs.
How do I
get my estate plan done?
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Complete
the Estate Planning Questionnaire on this site, and
submit it to us.
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Schedule a
conference so that we can discuss your particular
needs.
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Review and
execute your documents under our direction.
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Complete
any follow-up instructions that we provide.
What is a
will?
A will, sometimes called a “Last Will and Testament”, is
a written instrument that specifies how and in what
manner a person’s estate is to be distributed upon their
death. A person making a will is known as a testator.
Anyone designated to receive property under a will is
called a beneficiary. A will can also be used to appoint
a person responsible for distributing assets to the
beneficiaries (personal representative), trustee, or
guardian for minor children. A will does not provide any
instructions or powers with respect to lifetime
management of property.
How is a will used to distribute my property?
A will is not effective until it is "admitted" to
probate court proceedings. When a will is admitted by
the probate court, it means that the court accepts the
document as your last will and testament, and appoints a
personal representative to act on behalf of your estate.
The personal representative is empowered by the court to
carry out the instructions in your will. A will is not
effective until the court accepts it, and a personal
representative is appointed. In other words, the
personal representative cannot act for you unless the
probate court grants him the authority to do so.
What happens to my property if I do not have a will?
If a person dies without a will known as dying intestate
his or her property will be distributed according to a
formula defined by Florida law governing intestate
inheritance. You risk that your property will not be
distributed as you desire.
What is
probate?
Probate is the court-supervised process through which a
personal representative is appointed to (1) collect the
decedent's assets in his or her probate estate, (2) pay
the decedent's legal debts, and (3) distribute the
remaining assets in the decedent's Florida probate
estate to the individuals or entities entitled to the
assets in accordance with the will or laws of Florida
intestacy. Your “Probate Estate” comprises all the
property you owned at death that does not pass by trust
or operation of law. The probate court will also
determine the rights, if any, of a spouse and children
to the decedent's property in addition to what they have
been left in the will and supervises any claims filed
against the estate, objections to claims and probate
claims which are barred by time. Florida law contains
detailed instructions for handling a “formal
administration” of an estate.
Florida has a simple “summary administration” process
for estates worth less than $75,000. And when the value
of the estate assets isn’t more than the cost of final
expenses such as funeral bills or medical expenses, the
person paying the final expenses can dispose of personal
property simply by filing a “Petition for Disposition of
Personal Property Without Administration” with the
court.
Are there ways I can dispose of my property without it
going through probate?
Yes, there are a number of techniques that can be used
in Florida including:
1. Holding assets by joint tenancy with right of
survivorship (“JTROS”)- called a “tenancy by the
entireties” if you're married - with the assets
transferring automatically to the other joint tenant at
the time of death .
2. Name beneficiaries and provide for contingent
beneficiaries for all life insurance policies and
retirement plans, including IRA’s.
3. Use “in trust for” or “pay on death” (POD)
designations for bank accounts and stock.
Gifting cash or other assets before your death
4. Use a trust.
What is a trust?
A "trust" is a contract wherein one person (the trustee)
manages and holds legal title to property owned by
another (the settlor or grantor) for the benefit of a
third party or parties (the beneficiary). The grantor is
the individual who forms the trust and generally
contributes property to the trust. The trustee is the
individual or entity that administers the trust for the
benefit of certain beneficiaries. The trustee must
administer the trust property pursuant to the directions
in the written trust agreement and has a fiduciary duty
to the grantor and beneficiaries to carry out the intent
of the grantor in a fair and reasonable manner. There
are many kinds of trusts that may be created. Trusts can
be revocable or irrevocable, and may serve a multitude
of purposes. The most common forms can be categorized as
"living" trusts and "testamentary" trusts.
What is a "living" trust?
A "living" trust is a document created by the grantor to
provide for the managements of assets during the
grantor’s lifetime. The grantor of a living trust
usually appoints himself or herself as trustee in order
to maintain control of the trust property during his or
her lifetime. The two most often-cited advantages of a
living trust is to plan for incapacity and the avoidance
of probate. The grantor often appoints a "successor
trustee" to manage the property in the case of
incapacity or after he or she dies. The successor
trustee can then take over management of the trust
property without any further transfer of ownership.
Again, there is no limit on the terms and conditions
that may be contained in a living trust.
Just creating a “living” trust is of no benefit unless
the trust is properly funded with the grantor’s assets.
If assets are not properly transferred to the trust,
then the assets may be subject to probate.
What is a "testamentary" trust?
A "testamentary" trust is a trust created by a person’s
will and takes effect after his or her death. One of the
reasons a person may want to create a testamentary trust
is that it permits him or her to control how trust
property is given to the beneficiary. For example, the
beneficiary may be a minor at the time of the grantor’s
death and through a testamentary trust the assets are
held and managed by the trustee until the beneficiary
reaches the age the grantor decides is appropriate.
How does a living trust help me avoid probate?
Probate is avoided because living trust property is not
owned by the grantor at the time of death. As long as
property is properly titled in the name of the trust,
the successor trustee can manage and control trust
property without court supervison.
Is a
trust better than a will?
It depends
on your particular situation. Wills and trusts both
contain instructions for management and distribution of
property, and they both work equally well.
What is a "Durable Power of Attorney"?
A durable power of attorney is a document in which one
person (the “donor”) names another person (the “donee”)
to take care of the donor’s affairs, even if the donor
becomes incapacitated or disabled.
How is a "Durable Power of Attorney" made?
The document will identify the donor and donee(s),
recite the general and specific authorities given to the
donee(s), and will be signed by the donor in the
presence of two witnesses. It should be notarized. It
must contain language stating that the authority granted
is not affected by the donor’s subsequent incapacity or
disability. Of course, the donor must have the capacity
to understand the nature and significance of his or her
act.
Who can be named as donee of a "Durable Power of
Attorney"?
Any natural person over the age of 18, or a financial
institution having a place of business in Florida that
has trust powers. The donee should be someone
trustworthy because the person receiving the power steps
into the donor’s shoes and can transact business in the
same manner as the donor. So, select carefully.
Why give anyone a "Durable Power of Attorney"?
A Durable Power Of Attorney provides an inexpensive,
informal, non-judicial alternative for the management of
the donor’s affairs. It permits someone to act when the
donor becomes incapacitated, without having to establish
a guardianship or a trust. Individuals and business
institutions are under an obligation to honor a donee’s
apparent authority to transact business for a donor when
presented with a valid durable power of attorney. A
donee has a “fiduciary duty” to act under the power of
attorney solely in the best interests of the donor.
What is a “Living Will”?
A "living will" is a document, signed by the principal
in the presence of two witnesses, (one of whom is
neither the spouse nor a blood relative of the
principal) which contains the principal’s directions on
the providing, withholding, or withdrawal of
life-prolonging procedures in the event the principal
has a terminal condition, has an end-stage condition, or
is in a persistent vegetative state. Although it directs
the withholding or withdrawal of life-prolonging
procedures, it does not prevent the administration of
any medical procedure deemed necessary to provide you
with comfort care or to alleviate pain.
What is a “Health Care Surrogate”?
The purpose of the "Health Care Surrogate" form is to
designate who the principal wants to make health care
decisions on the principal’s behalf in the event when he
or she is unable to do so. The surrogate has authority
to act for the principal and to make all health care
decisions during the principal’s incapacity, to consult
with appropriate health care providers, to provide
informed consent, and to apply for public benefits. The
surrogate may only make health care decisions for the
principal which the surrogate believes the principal
would have made under the circumstances.
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