Florida Appellate Attorneys > Estate, Wills & Trusts FAQs

Estate, Wills & Trust FAQs

Q:  Can someone challenge my will after I die?

A:  In Florida, there are three main ways to challenge a will:  formalities of execution, undue influence and lack of capacity.  If a will has not been signed, or executed, according to the requirements of Florida law, it may be invalid.  Undue influence refers to a situation where someone pressures the testator to change his will when he doesn’t really want to.  A will is invalid for lack of capacity when a court determines that the testator did not have the mental capacity to understand what he was doing at the time he signed the will.

Q:  Do I need to make a provision in my will for my pets?

A:  Pets can outlive their owners, so it is a good idea to make a provision in your estate plan for your pet.  This could range from a paragraph expressing your wishes for your pet to a full trust naming your pet as a beneficiary, and naming a caretaker and a trustee, safeguarding your pet’s care.

Q:  How can an estate plan make things easier on my family after I die?

A:  An estate plan is one of the greatest gifts you can give your family.  It is a road map for what you want to happen with your assets after you die, and if you become incapacitated before you die.  It allows you to place the people you trust in positions of authority over your assets, and allows you to be specific as to when and how your loved ones receive the money.  It also ensures sufficient money is available and not tied up in probate when the bills come in.  In some cases, it allows you to minimize taxes as well.  Talk to an estate planning attorney to determine what works best for your estate.

Q:  If I create a revocable living trust do I still need a will?

A:  If you create a revocable living trust, you do still need a will.  Your will and revocable living trust work together.  Even if all of your assets are held in trust, there is always the possibility that a new asset could exist at the time you die.  For example, you could inherit shortly before you die, or could die in circumstances that allow your estate a recovery.  So when creating a revocable living trust, you also create a “pour-over” will, so called because it “pours” any probate assets into the trust.

Q:  What does a proper estate plan include?

A:  There are different kinds of estate plans for different goals.  The most common estate plan includes the goal of probate avoidance.  A basic probate avoidance estate plan includes a pour-over will, a revocable living trust, a durable power of attorney, a designation of healthcare surrogate, and, for those who want them, a living will.  These documents, when properly funded, allow your loved ones and fiduciaries to care for your person and property if you are unable to do so during life, and direct the distribution of your property according to your wishes upon your death.

Q:  What does it mean to fund a trust?

A:   A trust is funded by retitling your assets into your name as trustee of your trust.  When retitling your assets, always refer to the trust by the date of first execution, even if it has been amended.  Ideally, you should retitle your assets into your revocable living trust during life.  Those assets that fund the trust during life are available to a successor trustee to help care for you in the event you become incapacitated prior to your death, and will also avoid probate.  Always consult with an attorney regarding how and whether to fund a trust with a particular asset.  Some assets require special care.

Q:  What does tenancy by the entirety mean?

A:  A tenancy by the entirety is a form of property ownership reserved for married couples, which treats the spouses as one unit.  It has the survivorship features of joint tenancy with right of survivorship, but for certain purposes provides even more protections.  Ownership by tenancy by the entirety is severed upon divorce.

Q:  What happens if I become unable to care for myself?

A:  A proper estate plan prepares for the possibility that you may not always be able to care for yourself.  In most cases, having the documents provided in our basic estate plan will avoid the need for court guardianship proceedings.  One of the benefits of a funded revocable living trust is its provision for a trustee of your choice to pay your bills on your behalf of you are unable to do so.  A durable power of attorney addresses any assets that may not be in the trust, and also permits a fiduciary to apply for government benefits on your behalf.  A living will states your intentions regarding under what conditions you wish to refuse medical treatment, and a designation of health care surrogate names those persons who can receive medical information and make medical decisions for you if you are unable to do so.

Q:  What happens if you do not have a will or trust?

A:  If you do not have a will or a trust, any assets held by you alone, with no beneficiary designations, will go through a probate court proceeding on your death.  Instead of following your wishes as spelled out in a will, the court will have to determine who your heirs are under Florida law.  The court will appoint a personal representative without you selecting one.  The personal representative will likely be required to post a bond because you have not waived a bond in your will.  Once creditors are determined and paid, and costs of administration are paid, the remainder of your probate estate will be divided according to Florida’s formula for determining heirs at law, and will be paid outright to each heir.  If the only living relatives are too remote under Florida law to take, your money will go to the State.

Q:  What is a durable power of attorney?

A:  A durable power of attorney is created while you are of sound mind, and “endures” even if you become incapacitated.  It is a legal document permitting another person to act on your behalf regarding your business affairs.  It can be revoked by signing a revocation document, upon court determination of incapacity in a guardianship proceeding, or upon death.

Q:  What is a designation of health care surrogate?

A:  Designation of health care surrogate, also known as a health care proxy, is a document naming one or more people who can receive medical information about you and make medical decisions for you in the event you are unable to do so yourself.  If you have a living will, these are the people who you are asking to honor your wishes to refuse medical treatment, so be sure they have a copy.  You should also provide a copy to your primary care physician, and to any doctor you use for a planned procedure.  If you have children turning 18, be sure they sign one of these before going off to college.

Q:  What is a living will?

A:  A living will is a legal document that expresses your wishes to refuse medical treatment under certain conditions from which you are not expected to recover.  This never involves refusing comfort care.  It is important that your designated health care surrogate know your wishes in this regard, as they will be the one to invoke your wishes, so be sure they have a copy.

Q:  What is a trustee?

A:  A trustee is a fiduciary who acts to achieve the stated goals of a trust according to the powers and restrictions set forth in a trust document, and as governed by Florida law.  In the case of a revocable living trust, the grantor usually serves as his own trustee during his lifetime, and his chosen successor trustee takes over upon his death or incapacity.  A trustee can invest, often with the assistance of an investment advisor, and can make distributions to and disbursements on behalf of a beneficiary according to the terms of the trust document.   If the trustee is not the grantor, he must not treat the trust assets as his own money, and must provide statements or accountings to the beneficiaries.

Q:  What is a will?

A:  A will is a legal document that states your wishes regarding the administration of your probate estate.  In it, you identify beneficiaries, nominate a personal representative (Florida’s name for an executor), and request that the court not set a bond for that personal representative to serve.  If you have minor children, you can also nominate a guardian for your children if you should die while they are still minors, but this would not supersede the parental rights of another parent.  In Florida, you can also reference a list of tangible personal property (your “stuff” you can touch) and to whom you would like to give each item, and you can change this list without changing the will.  If you use this list, be sure to ask your attorney how to be sure the list is valid.  If you have a revocable living trust, you would typically devise the remaining probate assets to the trust to distribute according to its provisions.

Q:  What is an executor personal representative and what do they do?

A:  In Florida, an executor is known as a personal representative.  If you have a will, you nominate to the probate court the person(s) you want to serve as your personal representative(s).  If you don’t, the court will appoint someone without your input.  A personal representative, once appointed by the court, is responsible for administering your probate estate.  This includes marshalling your assets, notifying creditors and determining disputed claims, paying the valid creditor claims and costs of administration, and distributing the remaining assets to the beneficiaries as named in the will, or if there is no will, as determined under Florida law.

Q:  What is included in my estate?

[I would remove this question.  It is too vague.  She answers by talking about an estate plan, which describes a question already asked.  Inclusion of assets in an estate varies depending on the purpose for which you are calculating it, i.e., probate estate, gross estate for tax purposes, augmented estate for spousal elective share purposes, etc.]

Q:  What is probate?

A:  Probate is a court process that administers your assets (excluding those held jointly or in trust, or which have beneficiary designations) when you die.  The three goals of probate are to 1) marshal your assets, 2) determine and pay creditors, and 3) distribute the remaining assets to your beneficiaries.  There are three kinds of probate in Florida.  The two the firm is most commonly involved in are summary administrations (for assets totaling less than $75,000) and formal administrations (for assets totaling $75,000 and up).  In addition, sometimes a probate is necessary to make a court determination, such as an order determining homestead or exempt property.  Probate can tie up the money in an estate, so it is not easily accessible to pay ongoing bills for assets, such as mortgage and utility payments.  Probate also is designed to be closed after about a year, so estate planning provisions that provide for beneficiaries over a number of years or that provide for minors are better suited to a trust.  A good estate plan prepares your loved ones to have assets available to pay bills while the probate is open (or may avoid probate altogether), and can continue to operate past the time when a probate is designed to close.

Q:  What is the attorneys’ role in the probate process in Florida?

A:  A personal representative is required to retain an attorney to represent him in Florida.  Unless the estate qualifies as a “disposition of personal property without administration,” a lay person is not permitted to process a probate unrepresented in Florida.  The attorney assists the personal representative in completing his many duties involved in marshalling the assets, determining and paying creditors, and distributing the remaining assets to the beneficiaries.

Q:  What is the death tax?  Can I minimize the effect of the death tax through estate planning?

A:  Your assets can be taxed at death at both the federal and state level.  There is no Florida estate tax, which makes Florida an even more attractive place to retire.  There is a federal estate tax, which, as of this writing, can be at a rate of up to 40% of those assets that surpass the unified credit amount.  The unified credit amount for 2019 is $11.4 million dollars that can be passed through lifetime gifts and at death, or double for spouses.  If you have substantial assets, it is worth talking to an estate planning attorney to find ways to minimize the estate taxes you may owe upon death, allowing you to preserve more assets for your beneficiaries.

Q:  What makes working with you different than other lawyers?

I enjoy working with people to assist them in preparing for their future and creating future security and peace of mind for their families. I just sent my girls to college, and understand how important having these documents in place can be when a child turns 18.  I have also seen first hand how an estate plan can help during a divorce, and after the death of a loved one.  Let us help you put the puzzle pieces in place, whether you are celebrating 50 years together or saying goodbye to a loved one, to provide peace of mind for your future.

Q:  What should I know about gift taxes?

A:  In 2019, individuals can give up to $15,000 per donor per donee per year without filing a gift tax return.  In addition, tuition payments made directly to an educational organization on behalf of a person and certain medical expenses paid directly to the health care provider may be exempt.  So a married couple can give up to $30,000 to each grandchild per year, for example, and can also pay tuition money directly to their grandchild’s college to help with schooling.  Above this exemption amount, taxable gifts are subtracted from an individual’s unified credit, or lifetime estate- and gift-tax exemption, which is $11.4 million per person in 2019.  This can be a way to transfer wealth without estate and gift taxes, and allows you to plan the size of your gifts accordingly.

Q: What special planning should I do for my special needs child?

A:  If you have a special needs child that receives government benefits, the child may lose eligibility if he inherits assets.  For his portion of your inheritance, you may wish to consider a special needs trust. The special needs trust enables your special needs to child to receive government assistance and supplements that assistance with assets from the trust. These trusts are irrevocable and have exacting requirements.  Consult with an estate planning attorney to see which special needs trust is right for you.

Q:  When should an estate plan be reviewed?

A:  As a rule, an estate plan should be reviewed any time you have a change in:  1) the composition of your family; 2) the composition or value of your assets, or 3) the law.  An estate plan can be impacted by changes in state or federal law, life changes such as births, deaths, marriages, divorces, business acquisitions, retirement planning, changes in health, and college planning.  Generally speaking, we recommend reviewing your estate plan with your attorney when one of these events occurs, or every three to five years.

Q:  Who needs an estate plan?

A:  If you are 18 years old or older, you need an estate plan.  At a minimum, once you are 18 you need a durable power of attorney, a designation of health care surrogate, and, if you desire to express your refusal of certain medical treatment, a living will.  Parents, may wish to assist their child in obtaining these documents before going off to college.  Similarly, if you are over 18 and own assets, you may also need a will and trust. Having a will and a trust allows you to pick a trustee to take care of your finances if you are not able to during life, and to avoid probate and provide for chosen beneficiaries after death.

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