Frequently Asked Questions about Estate Planning in Boca Raton
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.
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:
- Your homestead (up ½ acre in a city or municipality and 160 outside),
- Qualified retirement plans and IRA’s,
- Life insurance,
- 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.
An LLC makes an election at the beginning of its existence to be taxed as either a C Corporation, an S Corporation, a disregarded entity or a partnership for federal tax purposes. If no election is made then the default choice is a Partnership.
Unfortunately, this is a complex questions that is very much dependent on your personal circumstances. Please contact our office for a confidential, free consultation to discuss.
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
An estate plan should be updated when there are changes in the testator’s beneficiaries, property, or family status (i.e. marriage, divorce, birth or adoption of a child, etc.). This can be accomplished by executing a proper amendment (a codicil) to modify the existing will or by canceling (revoking) the existing will and then executing a new one. It is not advisable to update a will by writing or making changes on it because such revisions may be totally ineffective.
Be aware that a will can also be canceled to some extent if the testator is divorced after making the will. In such a case, gifts to the ex-spouse in the will, as well as appointments of the ex-spouse as executor or trustee, are void and will not be recognized. However, an ex-spouse who was designated during marriage as a beneficiary under the decedent’s life insurance policies is entitled to the life insurance proceeds upon the decedent’s death. A temporary order issued by a divorce court prohibiting a party to a pending divorce case from changing his or her will until the divorce is final is unenforceable.
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. Otherwise, the property will pass according to the state law and provisions contained in the will that was signed before marriage, and the new spouse may receive less than the deceased spouse intended.
The Walser Law Firm can assist you with reviewing, updating and creating your will and other estate planning documents to ensure that your estate is distributed according to your wishes.
An estate plan consists of one or more documents that set forth instructions. Some documents are used to control health care decisions, others control your property in the event of your incapacity, and still other documents will control the distribution of your property in the event of your death.
The first thing that must be decided is who you would like to appoint as your attorney-in-fact to make health care decisions and as your attorney-in-fact to handle your financial affairs. They may be the same person or persons, or different people on each document. Two people may be appointed to make decisions together on your behalf, or you may choose to have alternates.
Next, it must be decided who you would like to inherit your estate, also called beneficiaries, and in what shares under your last will and testament or trust. Consideration should also be given as to how the beneficiaries receive their inheritance. Should everyone receive his or her entire bequest in one sum, or should some individuals receive distributions over time? Also, if you have concerns about creditors or saving estate taxes for a beneficiary, it may be beneficial to leave bequests in further trusts for beneficiaries. As part of your last will and testament you must also appoint a personal representative or co-personal representatives who will administer your estate. This includes hiring an attorney to represent the estate, collecting your assets, paying your debts and taxes and distributing your assets to the beneficiaries. If you create a trust then you must appoint a trustee or co-trustees who will make discretionary distributions of income and principal to your loved ones.
Wills are governed by state law. You should have your out-of-state will reviewed by a Florida estate planning attorney to be sure it will operate effectively in Florida.
A will used in conjunction with a Revocable Living Trust to dispose of any property titled in the decedent’s name alone at the time of death which was not transferred to the trust. The pour-over will also revokes all prior wills, but unlike traditional wills it does not contain detailed dispositive provisions; rather it directs distribution of all individually owned property to the trustee of his or her trust. The trust instrument contains detailed instructions relating to the distribution of the property. Like all wills, a Pour-Over Will must be admitted to probate to be effective
A will declares who shall inherit an individual’s assets (the beneficiaries) and who shall be responsible for distributing them to such beneficiaries (the personal representative). 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 only becomes effective upon your death, and after it is admitted to probate.
You should have an estate plan if you:
- Care about who inherits your property;
- Care about your health care treatment;
- Are the parent of minor or disabled children; and/or you want to avoid the public proceedings of a possible guardianship and probate.
A properly designed estate plan may:
- Provide instructions for your care and that of your loved ones in case of your disability;
- Be effective if you move to or own property in another state;
- Avoid probate;
- Keep your affairs private and confidential;
- Control all your property, including pensions and life insurance;
- Allow you to leave explicit instructions for the care of your loved ones;
- Create protective trusts for your young children, special needs children, adult children, and grandchildren; and,
- Provide federal estate tax planning and save professional fees and court costs.
With the help of a Boca Raton estate planning attorney at the Walser Law Firm, you can create an estate plan that will protect you and your family from guardianships, probate, and that will allow you to do valuable tax planning.
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.
Generally a couple of weeks afterwards, after you obtain death certificates
If I am named as Personal Representative of an Estate, am I personally liable for claims of the decedent’s creditors?
No. Unless you receive money from the decedent’s estate or trust preferentially (not including certain personal representative and trustee fees and reimbursement for certain expenses such as funeral expenses) to the claims of the creditors, you are not liable.
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, some distributions may be made to the heirs and beneficiaries soon after the estate is opened. If no probate is required,what must be done to settle the estate? Estate settlement is the process by which a decedent’s total estate, which includes both probate and non-probate assets, is settled. Even if an estate does not require a probate administration,all estates must be settled. There are still documents to be filed, debts and taxes to be paid and assets to be distributed. Estate settlement involves the following steps:
- Collection of decedent’s assets;
- Payment of debts and claims against the estate;
- Payment of estate taxes, if any;
- Determination of heirs if the decedent died without a will;
- Filing certain documents required under state law, in some cases to clear title to real property owned by the deceased; and,
- Distribution of the remainder of the estate of those entitled to it.
The personal representative has tobe approved by the court and those who receive property from the estate must be approved by the court. If the personal representative acts improperly, he or she may be held liable for any resulting damages and his or her appointment maybe terminated by the court. Florida law requires that virtually all estates have a probate attorney or probate law firm assist with the estate administration. The Walser Law Firm is available to help with all probate and estate matters to settle an estate. Please feel free to contact a Boca Raton probate attorney at our firm to learn how we can help you.
You will most likely want to avoid probate, if possible. Probate can tie up assets, expose assets to creditors, result in a loss of privacy to your family and cause your family considerable expense.
In Florida if your total assets are less than $75,000 (excluding homestead property) than a summary administration can be utilized whereby a formal probate is avoided. Otherwise, you will need to prepare a trust in order for your assets to be distributed outside of probate court. It’s in your best interest to consult with an attorney to minimize the chance of legal complications in trying to avoid probate.
Generally the answer is “no.” Heirs and beneficiaries can’t be made responsible for your general debts, at least without their consent. Unless the deceased had gifted away his or her assets to someone shortly before dying, or otherwise acted in concert with them to defraud his or her creditors, beneficiaries should not have any liability to the deceased’s creditors just because they are beneficiaries. Of course, the estate may not have anything left for them, but the beneficiaries would not have to pay creditors out of their own pockets. 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, not because they are relatives or beneficiaries.
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. Some of the most common objections are that the decedent lacked mental capacity at the time the will was executed; there force or undue influence; the will was forged, or the will was not properly drawn, signed or witnessed, according to the state’s formal requirements.
If a person dies without a will, he/she will be considered to have died intestate. In this case, the probate court will appoint a personal representative and the remaining property after any creditors have been paid will be distributed by state law.
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.
Property passing by contract includes life insurance proceeds, IRAs, and employee benefit plan proceeds, such as the proceeds payable under a pension, profit-sharing, or employee retirement plan. These assets pass outside the will to the persons named by the decedent in the appropriate beneficiary designations. Thus, it is important to periodically review the beneficiary designations with respect to these types of assets and to update them as necessary. Property held by the decedent and another person as joint tenants with right of survivorship passes outside the will directly to the survivor. Survivorship assets typically include certain types of bank accounts, certificates of deposit, stocks and bonds, and certain savings bonds issued by the United States Government, such as Series EE savings bonds. All property held in a trust for the benefit of the decedent passes outside of probate. The trust may have been created by the decedent during his or her 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 a well-drafted will may be insufficient to carry out the testator’s intent in disposing of his or her property.
All assets owned by the decedent in the decedents’ name alone, not in joint tenancy, in trust or with a beneficiary designation, are subject to probate administration upon decedent’s death. Real and personal property owned as a joint tenant pass to the surviving co-owners without going through probate. Other types of benefits, such as a life insurance policy or annuity payable directly to a named beneficiary bypass probate. Money from IRAs, Keoghs, and 401(k) accounts transfer automatically, outside probate, to the persons named as beneficiaries. Bank accounts that are set up as payable-on-death account (POD for short) or an “in trust for” account (a “Totten Trust”) with a named beneficiary also pass to that beneficiary without probate. 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.)
The personal representative (also known as the “executor” or “executrix”, or the “administrator” or “administratix” in other states) is appointed as part of the probate proceeding and has the responsibility for managing the estate through the proceeding, making a list of all the assets and debts of the estate and seeking to carry out the directives of the will. The probate court oversees the activities of the personal representative, and requires that she or he obtain prior permission of the court before certain actions may be taken, such as selling real estate or business interests owned by the estate
The main function of probate is transferring title of the decedent’s property to his of her heirs and/or beneficiaries. If there is no property to transfer, there is usually no need for probate. Another function of probate is to provide for a mechanism for payment of outstanding debts and taxes of the estate, for setting a deadline for creditors to file claims (thus foreclosing any old or unpaid creditors from haunting heirs or beneficiaries) and for the distribution of the remainder of the estate’s property to ones’ rightful heirs or beneficiaries.
Probate is a court-supervised process of distributing property as directed in a will or in accordance with the law if no will exists. Since there is court supervision of the entire process, the heirs/beneficiaries can be assured of a full and fair valuation and distribution of the estate. Probate is necessary whenever a deceased person leaves titled assets in their name alone.
State of Residence
The following is a suggested list of do’s (and don’ts) to help demonstrate you are no longer a resident of the former state:
- File a declaration of non-domicile with the former state, if available.
- Give up your driver’s license in the former state (once you have obtained your driver’s license in Florida).
- Have your name removed from the voting rolls of your former state.
- If the former state has an income tax, in the year you become a Florida resident begin filing as a “non-resident” of the former state. And, file a “Final Return” when you no longer have income in the former state
- Stay out of the former state for at least six months each calendar year. Certain states (not Florida) presume that you are a resident of that state if you resided there for more than six months.
- Consider selling your old home. Selling your former family home is both an emotional and financial issue. Thus, discuss this decision with your loved ones, as well as your estate planning, tax and financial advisors.
- If you were involved in civic, religious or charitable organizations, consider reducing any leadership roles and keep a lower profile in those organizations.
- Do not run for a politically elected position in the former state. Holding a political office typically requires that you are a resident of that state.
- Do not avail yourself of certain “discounts” that are only available to residents of the former state. For instance, in many states, residents receive an exemption (or reduction of real property tax) on their homestead. If you leave the state, notify the state and give up any such resident benefit (such as the homestead real estate tax exemption). Generally, one’s homestead is the primary residence used by that person as their established place of living.
Given the subjective nature of a person’s decision to change residency to Florida, courts and taxing authorities generally look to objective criteria (i.e., steps one took) to illustrate one’s intent to become a Florida resident. Based on experience, here is a list of steps you should consider taking when considering making Florida your home:
- File a “Declaration of Domicile” in the Office of the Clerk of the Circuit Court for the county of your new residence. You should be able to get this form at the county’s website.
- Obtain a Florida driver’s license, as soon a possible.
- Register to vote in Florida and then vote, as soon as you are eligible.
- Change the registration of your automobiles (i.e., obtain Florida license plates for your cars).
- 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, begin filing your federal income tax returns with the IRS Center where Florida residents file.
- Consider owning a home in Florida. If you own the home, then apply for the Homestead Exemption. You can apply for your Homestead Exemption at various locations in the county of your residence (e.g., the local real estate tax department, the clerk of the court, and/or local driver’s license bureau).
- If you rent a home in Florida, consider a longer term lease (generally at least a 12-month duration).
- Update your estate planning documents (e.g., your will, revocable trust, durable powers of attorney – for finances and health – and your living will), and establish in those documents that you are a “resident of Florida.” Generally, you are best advised to have a lawyer who is a member of the Florida Bar and experienced in estate planning (specifically for Florida residents) to advise and prepare the documents. The experienced Boca Raton estate and trust attorneys at the Walser Law Firm can help you with preparing these documents.
- Consider transferring financial relationships to a Florida advisor.
- Consider opening a safe deposit box at a Florida financial institution and storing valuables there.
- Consider establishing relationships with Florida health providers (doctors, dentists, ophthalmologists, etc.).
- If you are involved in any business transactions, recite 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).
- When traveling out of Florida, when registering at hotels and other boarding establishments, use your Florida address as your “home” address.
- When having casual conversation, get in the habit of calling Florida “home.”
- If you are involved in civic, religious or charitable organizations, consider changing your affiliations to Florida organizations.
Generally, a state can only tax its non-residents on income from or assets 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. Establishing that you are a Florida resident proves that you are not a resident of the former state!