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Estate Planning and Asset Protection FAQs

Below you will find answers to the most common questions our clients have about the complex world of estate planning, asset protection, and wealth preservation. The federal and state laws are intricate and always changing, so check back regularly and be sure to speak to your Boca Raton estate planning attorney to develop a generational wealth management and asset protection plan. 

Estate Planning

The length of the probate process in Florida generally depends on two things:

  1. The overall size and makeup of the estate in question, and
  2. How well the decedent prepared for the dispersal of the assets and property prior to their passing.

Probate Process

Estates that are not required to file a federal estate tax return and are not involved in litigation can usually be closed between six and nine months.

For estates that are required to file a federal estate tax return, the estate must remain open for two years.

However, certain distributions can be made to the heirs and beneficiaries soon after the estate is opened.

Estate Settlement

Even if an estate does not require a probate administration, all estates must be settled. Estate settlement is the process by which a decedent’s total estate, which includes both probate and non-probate assets, is settled. This includes filing documents, paying outstanding debts and taxes, and distributing assets.

Estate settlement involves the following steps:

  1. Collection of decedent’s assets,
  2. Payment of debts and claims against the estate,
  3. Payment of any estate taxes,
  4. Determination of heirs if the decedent died without a will,
  5. Filing certain documents required under state law, in some cases to clear title to real property owned by the deceased, and,
  6. Distribution of the remainder of the estate of those entitled to it.

The probate court must approve the personal representative and those who receive property from the estate. If the personal representative acts improperly, they may be held liable for any resulting damages and their appointment maybe terminated by the court.

Get Help Today

It’s always best to have an experienced probate and estate planning attorney assist you will the estate administration and settlement. We want to try to make the estate planning and probate process as simple and stress-free as we can. Call (561)998-2362 or click the button to schedule a free Financial Legacy Review online now.

Only an attorney who regularly practices in the fields of wills, trusts and estate planning is able to provide you with sound legal advice as you put your estate plan into place.

Often the expense incurred in retaining an attorney to prepare and help you put an estate plan into place is worth hundreds of times what you and your family would pay with no planning or poor planning. It would also avoid the financial and emotional nightmares that can occur with a poorly drafted (or improper) plan.

To own and manage your property, in a similar manner to a trust, but allowing additional tax planning techniques to be employed. Family limited partnerships are generally used for those who have large estates and who face potential heavy federal and state taxes, death, and inheritance taxes. A document appointing a health care surrogate and giving instructions to health care providers about the person’s wishes during the final stages of an illness, generally instructing providers not to interfere with the process of dying by using machines or other heroic measures to delay the natural course of a terminal illness. A legal instrument whereby one appoints and empowers another person as agent to deal with one’s property and personal and legal affairs. It remains effective even after the maker becomes incapacitated. Florida law authorizes both immediate and springing durable powers of attorney.

While each situation is different, an attorney who regularly practices in the field of wills, trusts, probate and estate planning is able to provide you with sound legal advice as you put your estate plan into place. Of equal importance is the need to annually review our clients’ estate plans and asset protection strategies to account for changes in law or the acquisition or disposition of assets. The costs of failing to periodically review and update are typically greater than the costs of keeping your estate plan and asset protection strategies current.

Don’t delay planning for your future and the future of your family. Please feel free to contact our office if you or a family member would like legal assistance to create a will, trust and other estate planning documents that are tailored for your needs, and would like to set a consultation to have your situation evaluated.

For client convenience, flexible scheduling is available including day, evening and weekend appointments. Home and hospital visits are also available. We look forward to assisting you with your estate planning needs

Estate plans are not one-and-done matter. Rather, they are iterative and must be reviewed periodically to ensure that your estate plan continues to match your financial goals and life circumstances.

Important personal milestones or major family events should both be an occasion to review and revise your estate plan. For instance, marriages and divorces, the birth of a new child or grandchild, or changes to intra-family dynamics must all be accounted for by formal modifications to your estate plan. The subsequent marriage of a single testator will not cancel his or her will. If a person who signs a will before marriage wishes to give all or any portion of his or her property to the new spouse, he or she should sign a new will.

Any considerable reorganization or additions to your asset portfolio also must be considered, and these new assets must be worked into your estate plan so that they are protected from creditors and predators.

At the same time, external economic, political, global, environmental, or legal shifts can also be taken into account to ensure your estate plan remains the best possible fit for your and your goals.

It is always advisable to make any and all changes to your estate plan in consultation with a Florida estate planning attorney. Often such documents are required to be notarized to be enforceable, and any tampering without following the proper procedures may result in the documents losing efficacy.

Get Help Today

If you have recently passed a big life milestone, a change has occured within your family, or you just want to revisit the structure of your estate plan to make sure it still provides the most effective tax strategies and asset protections, we can help. Call (561)998-2362 or click the button to schedule a free Financial Legacy Review online now.

An estate plan is a set of documents that work in concert to ensure that your property and assets are distributed when, how, and to whom you choose. Some documents control healthcare decisions, others control your property in the event of your incapacity, and still others will control the distribution of your property in the event of your death.

As you are preparing to work with an attorney to craft a comprehensive estate plan, you should consider a couple of basic issues.

  • Beneficiaries: Reflect on the relationships you have with your family and others who are close to you (or those who aren’t!). Beyond your direct nuclear family or close extended family members, consider other important people and organizations in your life. Perhaps there are schools, charities, or religious institutions that are essential to you. Maybe you have pets that you love and want cared for.
  • Deciders: Your healthcare surrogate and power of attorney are critical steps to ensuring your wishes are observed even if you become incapacitated or die. You will want to appoint trustworthy individuals who will be capable of making the tough financial and healthcare choices. You can also designate a personal representative to adminster your estate after your death.
  • Assets and Wealth: In assessing your wealth, you can likely point to your insurance policies, stocks, bonds, and real estate. But you also ought to consider the nature of your wealth. How are your assets titled? Who else is attached to them? If you are a business owner, do you have partners or investors? How assets are titled affects how they will transfer and to whom.
  • Timing: Think about how you would like your assets to be distributed and when. Do you prefer an outright distribution? Would you prefer assets be placed in a trust? Should the distribution wait until after your death or do you want to put assets aside right now?

This is by no means a comprehensive list of the topics to consider before or during the estate planning process. But if you have taken the time to think about these issues above, you will be well on your way.

Get Help Today

We know the estate planning process can seem daunting. That’s why we want to try to make the estate planning and probate process as simple and stress-free as we can. Call (561)998-2362 or click the button to schedule a free Financial Legacy Review online now.

Maybe. Obviously, we are biased, but we believe that the majority of Florida families ought to have some form of estate plan in place.

What exactly your estate plan looks like and how detailed or simple it is, will depend on your specific family and financial circumstances (this is why online forms are usually bad ideas!). 

Here are some questions to ask yourself to help determine if you need an estate plan. You should have an estate plan if:

  • Do you care about who inherits your property?
  • Do you want to determine your own end-of-life health care treatment?
  • Are you the parent of minor or disabled children?
  • Do you have pets that you love and want cared for after your death?
  • Do you want to avoid the public proceedings involved in the guardianship and probate processes?
  • Do you want to impose additional legal and logistical burdens on your family who are already grieving your loss?

A comprehensive and properly designed estate plan can address a plethora of concerns and objectives that you and your family might have. You might make the most minimal arrangements and simply create a will that appoints a personal representative, or you can go much further and:

  • Provide instructions for your care and that of your loved ones in the case of your disability,
  • Avoid the hassle and costs of the probate process,
  • Keep your family affairs private and confidential,
  • Create protective trusts for your minor children, special needs children, adult children, grandchildren, and pets, and,
  • Provide federal estate tax planning and save professional fees and court costs.

Get Help Today

What exactly “estate planning” means for you and your family depends on your financial goals. We want to try to make the estate planning process as simple and stress-free as we can. Call (561)998-2362 or click the button to schedule a free Financial Legacy Review online now.

An estate consists of all the property a person owns or controls, whether in his or her sole name, held in a partnership, in a joint ownership arrangement, or through a trust, and all other monies that would be generated on the person’s death, such as through life insurance.

An estate includes:

  • Life insurance, pension benefits, annuity contracts, IRAs, all debts and obligations owed to others real property and things attached to it (houses, buildings, barns, etc.);
  • All personal property (including automobiles, bank accounts, stocks and bonds, mutual funds, stock options, cash, furniture, jewelry, art, collectibles, etc.);
  • All businesses and business interests (sole proprietorships, partnerships, corporations, joint ventures, and the goodwill, inventory, tools and equipment, accounts receivable, and other business property, etc.);
  • Powers of appointment (the right to direct who gets someone else’s property); and,
  • Claims you have against others.

Estate planning is a process by which a person designs a strategy and prepares documents to conserve, protect, and distribute estate assets before and after death to family members, loved ones, charities, and other organizations. Critically, these plans take into consideration the effects of state and federal taxes and administrative laws and regulations. It can also involve planning for the use of your assets for your care if you become unable to manage your affairs during your lifetime.

On the financial side, a good estate plan coordinates what would happen with your home, your investments, your business, your life insurance, your employee benefits (such as a 401(k) plan), and other property or assets in the event you became disabled or when you die.

On the personal side, a good estate plan includes directions to carry out your wishes regarding health care matters, so that if you ever are unable to give the directions yourself, someone you select would do that for you, and know when you would want them to authorize or refuse heroic measures.

 

Wills and Trusts

Irrevocable Trusts are one of the two basic categories of trusts. Unlike Revocable Trusts, once a granton transfers ownership of assets to an Irrevocable Trust, its terms cannot be modified, amended, or terminated without the permission of the trust’s beneficiary or beneficiaries.

This rigidity sounds scary to many people, but Irrevocable Trusts provide tremendous benefits when implemented properly, which the more flexible Revocable Trusts do not offer:

  1. Minimization of Estate Taxes: Wealthier families can fund an Irrevocable Trust with life insurance proceeds, create charitable trusts, or gift substantial property to avoid estate taxes.
  2. Eligibility for Government Programs: Disabled beneficiaries have stringent income and asset limitations and overstepping those limits can cause their government benefits to be revoked.
  3. Protection of Assets: Protecting your assets from your creditors usually requires a trust to be irrevocable. Generally, the more restrictive the trust, the more protection it provides from creditors.

Get Help Today

Because the stakes are so high and the complexity so deep, trust planning is an area where you should get assistance from a qualified attorney. We want to try to make the estate and trust planning process as simple and stress-free as we can. Call (561)998-2362 or click the button to schedule a free Financial Legacy Review online now.

A Revocable Trust is one of the two basic categories of trusts into which every other type of trust can be classified.

The most basic difference between these two categories is that, as the name suggests, a Revocable Trust can be altered, adapted, changed, or terminated, i.e. revoked, whereas an Irrevocable Trust cannot.

This flexibility is what makes Revocable Trusts appealing. Grantors can still benefit from the assets in the trust while they are living, and the provisions of the trust can be altered at the grantor’s discretion.

Assets transferred into a Revocable Trust can also avoid probate. However, properly setting up and maintaining a Revocable Trust takes time and money. Funding a trust during a grantor’s lifetime requires reregistering securities, real property, and other assets in the name of the trust. Any property or assets not titled in the trust’s name, will still be subject to probate.

Finally, to clarify a point of undue confusion: “Revocable Trust” and “Revocable Living Trust” are used interchangeably and mean the same thing.

Trusts are used to accomplish a wide variety of specific estate planning goals, but most trust planning objectives tend to fall into four broad categories:

  1. Estate tax minimization,
  2. Asset protection,
  3. Setting terms for accessing assets (e.g. age or amount requirements), and
  4. Directing assets and property where you want.

Trusts greatly expand your estate planning options. They work in tandem with (not as alternatives to) wills to direct how and when beneficiaries receive your assets. In addition, assets and property distributed through a trust can avoid the public, expensive, and protracted Probate process.

There are hundreds of different types and subtypes of trusts to choose from. Depending on your exact goals, you and your estate planning attorney can decide on the type of trust that is right for you.

Get Help Today

Due to the complexity of trust planning, consulting with an attorney is always your best option. We want to try to make the estate and trust planning process as simple and stress-free as we can. Call (561)998-2362 or click the button to schedule a free Financial Legacy Review online now.

A trust is a legal creation that allows a trustee to hold and direct the assets that are transferred into it on behalf of a beneficiary. More specifically, a trust is a financial arrangement between three parties: The first party, the Grantor (the one who makes the trust), grants another party, the Trustee, the power to hold assets and distribute them to a third party, the beneficiary, at a designated time.

There are literally hundreds of types of trusts, each with different names and acronyms. But, in short, trusts work in tandem with (not as alternatives to) wills to direct how and when beneficiaries receive your assets. Trusts greatly expand your estate planning options, whether your primary concern is tax mitigation, asset protection, or wealth transfer.

When an estate begins the probate process, the probate court will appoint a personal representative to manage and oversee the decedent’s estate. Often, personal representatives are named by the decedent in the will, but if no will exists then the probate court will appoint one.

The personal representative’s responsibilities are many, including:

  • Gathering, valuing, and protecting the decedent’s probate assets,
  • Publishing a “Notice to Creditors” in a local newspaper in order to give notice to potential claimants to file claims,
  • Conducting a reasonably diligent search to locate creditors and notifying these creditors of the deadline to file a claim,
  • Paying valid creditor claims, but objecting to and defending against improper claims,
  • Filing tax returns and paying any taxes owed by the estate,
  • Distributing probate assets and property to the beneficiaries and heirs, and
  • Closing the probate estate.

Moreover, the probate court oversees the activities of the personal representative, and requires that they obtain prior permission of the court before certain actions may be taken, such as selling real estate or business interests owned by the estate. Mismanagement or impropriety by the personal representative could make them liable to the beneficiaries for any harm they may suffer.

Get Help Today

If you have questions about naming a personal representative, drafting a will, or the probate process more generally, let us know. We want to try to make the estate planning and probate process as simple and stress-free as we can. Call (561)998-2362 or click the button to schedule a free Financial Legacy Review online now.

No. Generally, as the Personal Representative (also known as the “Executor”), you are not personally liable for claims creditors might have against the decedent.

However, this might not be the case if you have received money from the decedent’s estate or trust preferentially to the claims of the creditors (not including certain personal representative and trustee fees and reimbursement for certain expenses such as funeral expenses). 

Get Help Today

We want to try to make the estate planning and probate process as simple and stress-free as we can. Call (561)998-2362 or click the button to schedule a free Financial Legacy Review online now.

Yes. When a person dies and a will exists, that will goes to a probate court for approval. However, beneficiaries and heirs do not always agree as to the validity of a will and wish to contest it.

Some of the most common objections to the validity of a will are:

  • The person lacked mental capacity at the time the will was executed,
  • The will was forged or executed by force or under undue influence, or
  • The will was not properly drafted, signed, or witnessed according to the state’s formal requirements.

There are procedures one must follow to contest a will. Objections to a decedent’s will must be filed in probate court within a certain number of days after receiving notice of the death or petition to admit the will to probate.

Get Help Today

The emotional and logistical stress of losing a loved one can be intense. We want to try to make the estate planning and probate process as simple and stress-free as we can. Call (561)998-2362 or click the button to schedule a free Financial Legacy Review online now.

If a person dies without a will, they will be considered to have died intestate, from the Latin in + testamentum (lit. “not having a will”).

When a person dies intestate, the person’s estate is administered according to the default Florida Probate Code, Ch. 732, Fl. Stat. (or whatever their state of residence was). The first step is for the probate court to appoint a personal representative to oversee the administration of the estate.

Eventually, after any creditors have been paid, the remaining property will be distributed to the heirs and beneficiaries. Unfortunately, this distribution is also done according to the order of priority in the Probate Code, not the wishes the deceased.

Because the probate process is such a hassle, expensive, and cumbersome, it’s critical to draft a legal valid will in advance that addresses these issues.

Get Help Today

If you concerned about drafting a will or are in a situation someone has died intestate, we can help. We want to try to make the estate planning and probate process as simple and stress-free as we can. Call (561)998-2362 or click the button to schedule a free Financial Legacy Review online now.

If you die without leaving a will, you risk your property and assets being distributed in ways you did not want. The reason for this is that when you die without a will, you are deemed “intestate” (from Latin in + testamentum “not having a will”) and the intestacy laws of Florida govern how, when, and to whom your assets and property will be distributed.

Florida’s intestacy statute lists which members of your family receive what and in what order. Unfortunately, everything rests upon blood relations, so longtime friends or caretakers will not receive any of your estate.

Even if you would leave your entire estate to your legal heirs or next of kin, there is no advantage to dying without a will. For example, you lose the opportunity to designate a personal representative, trustee, guardian for minor children, and to do valuable tax planning. Without taxing such steps, you could force your family to undergo a protracted, expensive, and public probate process before receiving your assets.

With a well-drafted will you can avoid legal pitfalls, name a personal representative of your estate, name a guardian for your children, establish trusts, and minimize probate-related costs by providing for independent administration. Dying without a will may cause unexpected costs and delays and undesired results for the decedent’s family.

Get Help Today

The emotional stress of losing a loved one can be intense. The last thing you should want to do to your family is increase that burden by making them go through additional legal hurdles after your passing. We want to try to make the estate planning and probate process as simple and stress-free as we can. Call (561)998-2362 or click the button to schedule a free Financial Legacy Review online now.

If you have relocated to Florida or changed your state of residence to Florida, it’s important to determine whether your current will is still valid and legally binding.

Like other contracts, wills are governed by state law. If you have an existing will that was drafted while you were residing in another state, you should have your out-of-state will reviewed by a Florida estate planning attorney to be sure it will operate effectively in Florida. 

In most instances, it’s best to have your attorney update your estate planning documents to reflect your new state of residence and to keep all of the documents functioning as a cohesive estate plan. 

Get Help Today

Did you recently move to Florida and need to update a will? We want to try to make the estate planning process as simple and stress-free as we can. Call (561)998-2362 or click the button to schedule a free Financial Legacy Review online now.

A Florida pour over will is used in conjunction with a Revocable Living Trust to transfer any assets or property titled in the decedent’s name to the trust when the person passes away. The trust assets are then distributed according to terms outlined in the trust.

Pour over wills serve a pragmatic purpose. When one creates a living trust, one of the first tasks is to transfer ownership of assets and property to the trust. However, as new assets are acquired over time, people often forget to add them to the trust in the proper name. Without any other documentation in place, those assets or properties will be titled in the decedent’s name at the time of their death.

A pour over will is the solution to this problem. The pour over will states that all assets that have not already been titled in the name of the trust should be transferred to it. These assets and property “pour over” from your estate into the trust.

Get Help Today

We want to try to make the estate planning process as simple and stress-free as we can. Call (561)998-2362 or click the button to schedule a free Financial Legacy Review online now.

A will is the document you create that outlines how, when, and to whom you want your assets and property to be distributed upon your death. Importantly, it also designates a personal representative who will be responsible for distributing your assets and administering your estate.

For young parents and couples, a will can also be used to appoint a guardian for their minor children and a trustee to manage the children’s money until they are old enough to handle it themselves.

A will cannot do everything, though—there are certain limitations. A will works in concert with your other basic estate planning documents to create a fully functioning estate plan. A will only becomes effective upon your death, and after it is admitted to probate.

Get Help Today

The emotional and logistical stress of losing a loved one can be intense. The last thing you want to do is put an additional burden on your family by improperly planning for the administration of your estate. We want to try to make the estate planning process as simple and stress-free as we can. Call (561)998-2362 or click the button to schedule a free Financial Legacy Review online now.

 

Asset Protection

If a single person gives more than $15,000 in cash or assets (e.g. stocks, real estate, a car) in a year to any one person without expecting to receive something of equal value in return, they will need to file a gift tax return. However, breaching the $15,000 maximum doesn’t mean they have to pay a gift tax. It simply means they need to file IRS Form 709 to disclose the gift.

Also keep in mind two additional points. First, the $15,000 gift tax annual exclusion is per recipient. So, a person could gift $15,000 to several individuals without having to file a gift tax return.

Second, the exclusion also per giver. This only works for spouses, but for married couples, each spouse could give $15,000 to the same person, for a combined total of $30,000. Again this does not trigger the need to file a gift tax return.

 

Under present law the Unified Credit is $5,490,000. 

No. Although these two legal concepts sound the same, they are in fact different.

Only spouses can own property as Tenants by the Entirety (TBE). Additionally, upon the death of one of the owners in each of a Tenancy by the Entirety and Tenancy with Right of Survivorship, the property passes to the remaining owner.

In a Tenancy in Common situation, on the other hand, the deceased owner’s share generally passes as designated in the deed or by such tenant’s estate planning documents.

Yes. Florida law has generous provisions to keep certain assets safe from creditors. In general, there are six assets that are statutorily protected:

  1. Your homestead (up ½ acre in a city or municipality and 160 outside),
  2. Qualified retirement plans and IRA’s,
  3. Life insurance,
  4. Annuities,
  5. Wages,
  6. Property owned as Tenants by the Entirety.

All of these protections come with numerous caveats, and, of course, the assets in question cannot have been acquired through fraud. 

Depending on the number of members, an LLC can opt for one of four taxation regimes:

  • Sole Proprietorship (i.e. disregarded tax entity),
  • Partnership,
  • S corporation,
  • C corporation.

This flexible tax structure is one of the most appealing aspects of the LLC as it allows owners to optimize their business entity to suit their particular needs and circumstances.

Default Tax Structures

If no choice is made, a single-member LLC will by default be taxed as a sole proprietorship. Multi-member LLCs (i.e. with more than one member) will be taxed as partnerships by default.

You don’t need to file anything with the IRS as a sole proprietor, but to be taxed as a disregarded tax entity (i.e. sole proprietorship), it must be a single-member LLC.

Multi-member LLC owners would report personal income on Schedule C of Form 1040, but the LLC would also file a Form 1065 with the IRS and issue K-1 statements to all LLC members.

S Corp or C Corp Taxation

LLC members can elect for corporate taxation as well, either as a C corporation or an S corporation.

By electing S corporation tax status, LLC owners may be able to avoid other taxes that a Sole Proprietor must pay, such as self-employment taxes (i.e. Social Security and Medicare). S corporations are still pass through entities, however, and aren’t subject to double taxation like C corporations. To be taxed as an S corporation, an LLC must file Form 2553 with the IRS. 

An LLC could also opt for C corporation tax status by filing Form 8832 with the IRS. Doing so, however, subjects them to one of the biggest downsides of forming a C corporation, double taxation. A C corporation’s profits, however, are taxed at the corporate level and at the personal level.

Asset protection strategies are complex, nuaced, and ultimately situation-specific. Depending on the distribution and allocation of your and your family’s assets and wealth, different mechanisms will be the more beneficial and effective at providing maximum tax mitigation, creditor protections, and wealth preservation.

We specialize in crafting such financial blueprints for wealth preservation and asset protection that take into account your present and future goals to ensure your estate plan fits your circumstances like a bespoke suit.

Get Started Today

We are here to help you protect and preserve what you have worked so hard to build. Call (561)998-2362 or click the button to schedule a free Financial Legacy Review online now.

 

Elder Mediation

Elder Mediators can address a wide range of issues surrounding elder care, wills and estate, healthcare, and more. Some of the most common areas where families come to loggerheads and may need the services of a Certified Elder Mediator include:

  • Independence of an Aging Parent
  • Caregiving Responsibilities
  • Financial Issues
  • Guardianship Issues
  • Housing and Living Arrangements
  • Intergenerational Relationship Issues
  • New Marriages and Step-Relative Issues
  • Family Business Continuity
  • Elder Abuse and Neglect
  • Legal and Estate Planning Issues
  • Medical Care
  • End-of-life Planning

While addressing these delicate and sensitive topics is never easy, working through these challenges with a Certified Elder Mediator can be a real opportunity to preserve the financial and structural wellbeing of the family.

Elder mediation is a form of family mediation that provides a forum for family decision-making around those issues most often encountered when dealing with aging parents or grandparents. The elder mediation process has two fundamental goals:

  • To allow families to create workable and mutually acceptable solutions to their current disputes, and
  • To develop communication strategies that enable them to work together to make important decisions in the future.

Because family members develop their own solutions that reflect their family’s unique situation, satisfaction with the outcome is quite high and the resolutions tend to be workable and long lasting.

Elderly Floridians face an array of unique concerns and challenges ranging from Medicare and Social Security, to assisted living arrangements and financial independence.

When communication stalls and critical decisions are halted, families may need the help of a skilled mediator to move the balls forward again.

Certified Elder Mediators are specifically trained to handle and negotiate interfamily conflicts that involve aging parents or elderly grandparents in a way that leaves all parties feeling satisfied in the outcomes.

 

Elder Mediation Videos

Probate Process

When an estate begins the probate process, the probate court will appoint a personal representative to manage and oversee the decedent’s estate. Often, personal representatives are named by the decedent in the will, but if no will exists then the probate court will appoint one.

The personal representative’s responsibilities are many, including:

  • Gathering, valuing, and protecting the decedent’s probate assets,
  • Publishing a “Notice to Creditors” in a local newspaper in order to give notice to potential claimants to file claims,
  • Conducting a reasonably diligent search to locate creditors and notifying these creditors of the deadline to file a claim,
  • Paying valid creditor claims, but objecting to and defending against improper claims,
  • Filing tax returns and paying any taxes owed by the estate,
  • Distributing probate assets and property to the beneficiaries and heirs, and
  • Closing the probate estate.

Moreover, the probate court oversees the activities of the personal representative, and requires that they obtain prior permission of the court before certain actions may be taken, such as selling real estate or business interests owned by the estate. Mismanagement or impropriety by the personal representative could make them liable to the beneficiaries for any harm they may suffer.

Get Help Today

If you have questions about naming a personal representative, drafting a will, or the probate process more generally, let us know. We want to try to make the estate planning and probate process as simple and stress-free as we can. Call (561)998-2362 or click the button to schedule a free Financial Legacy Review online now.

Probably. Whether you need a probate attorney in Florida will depend largely on the type of probate process required in your circumstance. The probate process in Florida is not a singular thing. Instead, Florida generally has three probate processes that you must consider.

In turn, which type of probate will apply in your situation will depend to a large extent on the size of the estate in question and the probate avoidance strategies implemented by the decedent.

Formal Probate Administration

This is the full-blown probate process. There are a litany of particulars and smaller steps, but in broad strokes the formal probate process follows this basic course of action:

  • A court appoints the personal representative,
  • Creditors are given a required 90-day notice,
  • Any creditor’s claims are paid from the estate, and
  • The remaining assets and property are distributed to the heirs and beneficiaries
  • The estate is closed.

Any estate over $75,000, any estate with debts, and estates with unknown assets are required to go through the formal probate process. If your situation meets the criteria for the formal probate process, you will absolutely need to hire a probate attorney to assist with the administration of the probate estate.

Disposition without Administration

This process is often compared with “small estate provisions” that some other states have, but the analogy is not quite right. While it does not technically involve the probate process, it does involve the Florida court system.

Disposition with Administration is only available in specific situations and to some very small estates. Typically, such cases involve petitions to the probate court for access to assets (e.g. bank account) to pay outstanding funeral bills or medical expenses or to reimburse someone for paying for such expenses out of pocket. The petitions must be made within 60 days of the person’s death.

You probably will not need to hire a probate attorney for the disposition without administration process.

Summary Administration

The third probate process is a simplified version of the formal process, but it is only available in very limited situations where all four of the following criteria are met:

  1. Less than $75,000 in total assets,
  2. All the beneficiaries and heirs consent to the petition,
  3. The decedent has no outstanding debts, and
  4. All of the decedent’s assets are known (if an asset is discovered in the future, you have to go back to court again!)

You may not need a probate attorney to help with summary probate administration, but I would recommend you have one. Over the years I have seen many families try to do it on their own, only to have the court reject the summary paperwork they filed due to deficiencies.

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The point at which you need to contact an estate planning attorney after someone dies will depend on many things, including how well the deceased person planned for their end-of-life.

Some issues to consider before contacting an estate planning or wills and trusts attorney are:

  • Have you received the death certificate yet (note: can take up to 14 days)?
  • Did the deceased person have a will or did they die “intestate”?
  • What is the size of the deceased’s estate?
  • What is your relationship to the deceased?
  • Will the deceased person’s estate need to go through probate?

Generally, if a deceased person had a will, you should wait until you have obtained the death certificate to contact your attorney regarding next steps.

However, if you or the deceased does not have an estate planning attorney or the relationship isn’t good, you can begin vetting qualified estate planning attorneys earlier than that to help you navigate the probate process .

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No. Generally, as the Personal Representative (also known as the “Executor”), you are not personally liable for claims creditors might have against the decedent.

However, this might not be the case if you have received money from the decedent’s estate or trust preferentially to the claims of the creditors (not including certain personal representative and trustee fees and reimbursement for certain expenses such as funeral expenses). 

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The length of the probate process in Florida generally depends on two things:

  1. The overall size and makeup of the estate in question, and
  2. How well the decedent prepared for the dispersal of the assets and property prior to their passing.

Probate Process

Estates that are not required to file a federal estate tax return and are not involved in litigation can usually be closed between six and nine months.

For estates that are required to file a federal estate tax return, the estate must remain open for two years.

However, certain distributions can be made to the heirs and beneficiaries soon after the estate is opened.

Estate Settlement

Even if an estate does not require a probate administration, all estates must be settled. Estate settlement is the process by which a decedent’s total estate, which includes both probate and non-probate assets, is settled. This includes filing documents, paying outstanding debts and taxes, and distributing assets.

Estate settlement involves the following steps:

  1. Collection of decedent’s assets,
  2. Payment of debts and claims against the estate,
  3. Payment of any estate taxes,
  4. Determination of heirs if the decedent died without a will,
  5. Filing certain documents required under state law, in some cases to clear title to real property owned by the deceased, and,
  6. Distribution of the remainder of the estate of those entitled to it.

The probate court must approve the personal representative and those who receive property from the estate. If the personal representative acts improperly, they may be held liable for any resulting damages and their appointment maybe terminated by the court.

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Probably. You will most likely want to avoid probate, if possible. The probate process has numerous downsides.

First, it takes time, and many assets will be tied up while the process in ongoing. Depending on the size of the estate, the probate process could take six months to two years.

Second, the probate process potentially gives creditors access to your property and assets. There may also be considerable fees imposed on your family to complete the process.

Finally, the probate process involves public hearings and will result in a loss of privacy to your family during a time of less and emotional pain.

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Yes and No. Working with a qualified estate planning attorney, you can craft an estate plan that will allow you to avoid the probate process. The legal nuances are complex and in order to develop an estate plan that accomplishes your goals you will require the help of an attorney—this is definitely not a time to try to do it yourself.

If you don’t get everything correct, your assets may still be required to go through one of the three potential probate processes in Florida.

Formal Probate Administration

This is the full-blown probate process wherein a court appoints the personal representative, creditors are given notice, and creditor’s claims are paid. Most large estates, estates with debts, and estates with unknown assets will require the formal probate process.

Disposition without Administration

This process is often compared with “small estate provisions” that some other states have. While it does not technically involve the probate process, it does involve the Florida court system. Disposition with Administration is only available in specific situations and to some very small estates. Typically, such cases involve petitions to the probate court for access to assets to pay outstanding funeral bills or medical expenses.

Summary Administration

The third probate process is a simplified version of the formal process, but it is only available in very limited situations where all four of the following criteria are met:

  1. Less than $75,000 in total assets,
  2. All the beneficiaries and heirs consent to the petition,
  3. The decedent has no outstanding debts, and
  4. All of the decedent’s assets are known (if an asset is discovered in the future, you have to go back to court again!).

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Generally, no. By and large, beneficiaries should not have any liability to the deceased’s creditors simply because they are beneficiaries, unless:

  • the deceased gifted away their assets to someone shortly before dying, or
  • the deceased acted in concert with the beneficiary to defraud their creditors.

Even if the decedent’s estate lacks the funds to fully pay all outstanding creditor claims, heirs and beneficiaries are not personally obligated to pay the general debts of the deceased.

Of course, if the children or beneficiaries took any property or benefits from the deceased or the estate, or had assumed liability for care given the deceased, or guaranteed payment, they could be held liable for some or all of the deceased’s debts separately. This obligation to pay, however, is not based on their status as beneficiaries.

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Yes. When a person dies and a will exists, that will goes to a probate court for approval. However, beneficiaries and heirs do not always agree as to the validity of a will and wish to contest it.

Some of the most common objections to the validity of a will are:

  • The person lacked mental capacity at the time the will was executed,
  • The will was forged or executed by force or under undue influence, or
  • The will was not properly drafted, signed, or witnessed according to the state’s formal requirements.

There are procedures one must follow to contest a will. Objections to a decedent’s will must be filed in probate court within a certain number of days after receiving notice of the death or petition to admit the will to probate.

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If a person dies without a will, they will be considered to have died intestate, from the Latin in + testamentum (lit. “not having a will”).

When a person dies intestate, the person’s estate is administered according to the default Florida Probate Code, Ch. 732, Fl. Stat. (or whatever their state of residence was). The first step is for the probate court to appoint a personal representative to oversee the administration of the estate.

Eventually, after any creditors have been paid, the remaining property will be distributed to the heirs and beneficiaries. Unfortunately, this distribution is also done according to the order of priority in the Probate Code, not the wishes the deceased.

Because the probate process is such a hassle, expensive, and cumbersome, it’s critical to draft a legal valid will in advance that addresses these issues.

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Probate is usually required in each state where the real property is owned in the decedent’s name, in addition to the home state.

After a personal representative is appointed in Florida, a certified copy of the will, if any, at initial probate pleadings as letters of administration appointing the personal representatives, must be submitted to probate in each other jurisdiction in which the deceased owned real property. That separate probate procedure is formally referred to as “ancillary probate.” Some states insist upon the appointment of a personal representative who is a local resident to administer the in-state property.

Where the deceased did not have a will, each state will have its own law for distributing the deceased’s real property. The real estate in State A, all might go to the spouse; in State B, it might go 1/3rd to the spouse, 1/3rd to the son and 1/3rd to the daughter; and in State C, it might go 1/2 to the spouse and 1/4 each child. The laws of the state in which the deceased was a permanent resident or “domiciliary” govern who would receive all the deceased’s personal property, wherever it was located, and all the deceased’s real property located within the state.

Thus, probate almost always is undertaken in the home state.

In Florida, estates have both probate and non-probate assets. When thinking about your will and other estate planning documents, it’s important to understand this difference.

Non-probate assets fall into a few basic categories.

  • Beneficiary Designations: First, assets with beneficiary designations with payable on death provisions such as insurance policies, 401(k)s, employee benefit plans, and IRAs are not subject to probate. The will does not control how, when, or to whom these non-probate assets are distributed. Instead, they pass by the operation of law to the persons named in the appropriate beneficiary designations.
  • Joint Ownership: Assets held by the decedent and another person as joint tenants with rights of survivorship also pass outside the will directly to the survivor. Survivorship assets typically include assets owned by spouses, jointly titled real property, certain types of bank accounts, certificates of deposit, stocks and bonds, and certain government savings bonds (e.g. Series EE savings bonds).
  • Trusts: All property held in a trust for the benefit of the decedent passes outside of probate also. The trust may have been created by the decedent during their lifetime for property management purposes or by someone else, such as a parent of the decedent. Trust assets pass under the terms of the trust rather than under the terms of the decedent’s will.

It is important to determine the extent of one’s non-probate assets when planning the disposition of one’s property at death. If a substantial portion of the assets are non-probate assets that do not pass under the will, even the best will may be insufficient to carry out the deceased’s intended disposition of their property and assets.

Furthermore, periodically reviewing the beneficiary designations and asset titling is critical to ensuring that your assets and propert pass to the proper heirs and beneficiaries. 

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In Florida, an estate’s assets fall into two different fundamental categories: probate and non-probate assets.

All assets owned by the decedent in the decedents’ name alone are subject to probate administration upon decedent’s death.

Other assets and property not titled exclusively in the deceased’s name or that include beneficiary designations are not subject to probate. Such non-probate assets include:

  • Jointly Owned Assets: Real and personal property can be owned by spouses as tenants by the entirety or owned by two individuals jointly with rights of survivorship. Assets titled in such a way will pass directly to the survivors without going through probate.
  • Beneficiary Accounts: Other types of assets have beneficiary designations which supercede wills and are likewise not subject to probate. Assets such as a life insurance policy, IRA, 401(k), employee benefit account, or a bank account with a payable-on-death provision will transfer automatically, outside probate, to the persons named as beneficiaries.
  • Living Trust: If a living trust holds legal title to some of your property, then the assets held by the living trust also passes to the beneficiaries without probate. (The trust is a legal entity which survives you after your death.)

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This is by no means an exhaustive list. Ensuring assets transfer how, when, and to whom you want requires the proper planning. We want to try to make the estate planning and probate process as simple and stress-free as we can. Call (561)998-2362 or click the button to schedule a free Financial Legacy Review online now.

When an estate enters the probate process, the probate court will appoint a “personal representative” to manage and oversee the estate of the decedent. (You may also see the terms “executor/-trix” or “administrator/-trix” in other states).

An individual or a bank or trust (subject to certain restrictions) can be appointed as personal representative. If the decedent had a valid will, the probate court will appoint the person named by the decedent in the will as personal representative, provided that the named person is qualified to serve as the personal representative.

If the decedent died intestate (i.e. without a will), the right to serve as personal representative first passes to the surviving spouse, then to the person or entity chosen by a majority of the deceased’s heirs, and finally, if no decision is reached, to a court-appointed representative.

The personal representative is responsible for valuing and protecting the assets, giving notice to creditors, paying outstanding debts, and distrubiting the property and assets of the estate.

Finally, the probate court oversees the activities of the personal representative, and requires that they obtain prior permission of the court before certain actions may be taken. Mismanagement could make the personal representative liable to the beneficiaries for any harm they may suffer.

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Obviously, from the family’s perspective, the main function of probate is to transfer title and ownership of the decedent’s property to the rightful heirs and beneficiaries.

However, there are other stakeholders in play as well, including the estate’s creditors. Probate also provides a mechanism for payment and settlement of outstanding debts and taxes of the estate.

The probate process has the following broad goals:

  1. Give the decedent’s creditors the opportunity to be paid,
  2. Pay the decedent’s taxes,
  3. Correctly distribute the property and assets to beneficiaries, and
  4. Properly settle the decedent’s affairs.

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Probate is the court-supervised process of verifying a will and of distributing property as directed in a will or in accordance with Florida law if no will exists. More specifically, the probate process ensures the decedent’s debts and obligations are paid and that the decedent’s property and assets are distributed to the rightful heirs and beneficiaries.

Generally, a probate estate includes only those assets titled in the decedent’s own, individual name. Assets that are held as tenants by the entirety, jointly held with rights of survivorship, and other assets such as life insurance policies, IRAs, and 401Ks do not fall into probate estate. These assets distributed to the survivors or to the designated beneficiaries by the operation of law.

For example, if Michael Bluth dies with stocks certificates titled in his name, a bank account jointly owned with his son, and a 401(k) with his son as the designated beneficiary, only the stock certificates would be required to go through the probate process. His son would own the bank account as the survivor and the 401(k) would distribute to his son as the beneficiary.

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If you die without leaving a will, you risk your property and assets being distributed in ways you did not want. The reason for this is that when you die without a will, you are deemed “intestate” (from Latin in + testamentum “not having a will”) and the intestacy laws of Florida govern how, when, and to whom your assets and property will be distributed.

Florida’s intestacy statute lists which members of your family receive what and in what order. Unfortunately, everything rests upon blood relations, so longtime friends or caretakers will not receive any of your estate.

Even if you would leave your entire estate to your legal heirs or next of kin, there is no advantage to dying without a will. For example, you lose the opportunity to designate a personal representative, trustee, guardian for minor children, and to do valuable tax planning. Without taxing such steps, you could force your family to undergo a protracted, expensive, and public probate process before receiving your assets.

With a well-drafted will you can avoid legal pitfalls, name a personal representative of your estate, name a guardian for your children, establish trusts, and minimize probate-related costs by providing for independent administration. Dying without a will may cause unexpected costs and delays and undesired results for the decedent’s family.

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The emotional stress of losing a loved one can be intense. The last thing you should want to do to your family is increase that burden by making them go through additional legal hurdles after your passing. We want to try to make the estate planning and probate process as simple and stress-free as we can. Call (561)998-2362 or click the button to schedule a free Financial Legacy Review online now.

 

State of Residence

Many Americans choose to move to the great state of Florida to enjoy our sun, sand, and surf. Still others choose to make Florida their primary state of residence to take advantage of Florida’s beneficial tax codes.

Given the subjective nature of a person’s decision to change residency to Florida, courts and taxing authorities generally look to objective criteria to illustrate one’s intent to become a Florida resident. The following is a suggested list of dos and don’ts to formalize your residency in Florida and help demonstrate you are no longer a resident of the former state:

  • File a “Declaration of Domicile” in the Office of the Clerk of the Circuit Court for the county of your new residence.
  • Obtain a Florida driver’s license as soon a possible and change your automobile tags and registration.
  • Register to vote in Florida and then vote in the first election.
  • Notify the Internal Revenue Service that your new mailing address is in Florida. This can be accomplished by filing Form 8822 (“Change of Address”).
  • In the year you make Florida your domicile, file any state tax returns in your previous state as a “non resident.”
  • Consider buying a home. If you own the home, then you can apply for the Homestead Exemption.
  • If you rent a home in Florida, consider a longer-term lease.
  • Update your estate planning documents to reflect that you are a “resident of Florida.”
  • Consider transferring financial and tax relationships to Florida advisors.
  • If you are involved in any business transactions as an individual, include that you are a resident of Florida in any legal documents.
  • If you receive Social Security or any other federal benefits, notify those federal agencies of your move to Florida.
  • When possible, spend as much time in Florida. Generally when making significant trips, you should consider departing from Florida (versus departing from the former state).
  • During overnight stays outside of Florida, use your Florida address as your “home” address.
  • When having casual conversation, get in the habit of calling Florida “home.”
  • Move away from involvement in civic, religious, or charitable organizations in your former state and consider changing your affiliations to Florida organizations.

These tips will help you transition to your new state of residency and ensure you can properly take advantage of the tax laws of Florida.

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Many people choose to make Florida their state of residency because of our beneficial tax code. Unless you have fully relocated to the state permanently, it’s important to take steps to prove that you truly are a resident of Florida.

Generally, a state can only tax its non-residents on income from or assets located in that state. When you are no longer a resident of a state, and if you will no longer have income from or assets in that former state, it loses its ability to tax you. Thus, to prevent the loss of revenue from your departure, the former state may attempt to treat you as a resident, unless you prove otherwise.

Unless you take the appropriate steps to establish yourself as a Florida resident, your former state may still claim you on their tax rolls. In effect, you would counteract any benefits you saw in making Florida your state of residence. 

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After moving to Florida, you will want to have an estate planning attorney update or draft an appropriate estate plan that reflects your new residency status. We want to try to make the estate planning process as simple and stress-free as we can. Call (561)998-2362 or click the button to schedule a free Financial Legacy Review online now.

If you have relocated to Florida or changed your state of residence to Florida, it’s important to determine whether your current will is still valid and legally binding.

Like other contracts, wills are governed by state law. If you have an existing will that was drafted while you were residing in another state, you should have your out-of-state will reviewed by a Florida estate planning attorney to be sure it will operate effectively in Florida. 

In most instances, it’s best to have your attorney update your estate planning documents to reflect your new state of residence and to keep all of the documents functioning as a cohesive estate plan. 

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