FAQs

Most clients would benefit from having a valid, clear, and concise Will (i.e., Last Will and Testament) in place at the time of their death. That is because the decedent’s separately titled assets, such as real estate, household contents and furnishings, cars, bank accounts, etc., are deemed to be controlled by the decedent’s Will, and subject to Probate. An exception exists for jointly held assets which have survivorship rights, and for beneficiary designation assets, all of which pass by operation of law without reference to the decedent’s will.

In Florida, the primary requirements are that the Will be in writing, signed at the end by or on behalf of the competent adult making the Will (the “Testator”), and signed in the presence of two witnesses who also sign in the presence of each other and in the presence of the Testator: follow this link.

If you don’t have a Will, then the State of Florida has a statutory will for you, which becomes operative upon your death. One statute applies if you are married at the time of your death: follow this link. Another applies to the non-marital share of your estate, or if you are not married: follow this link . Interestingly, your surviving spouse only gets all of your probate estate if you die intestate “without issue”, meaning without any living descendants at all. Otherwise, if you die intestate and are married, your spouse will receive one-half or more of your probate estate, together with his or her survivorship to your joint and beneficiary designation assets in his or her favor.

Yes, in addition to other provisions, Florida’s homestead: follow this link, exempt property: follow this link, and family allowance: follow this link statutory and constitutional provisions: follow this link, also affect an intestate estate.

Every case and every client is different, but Florida has special protection provisions of homestead for spouse and children: follow this link and follow this link, as well as spousal elective share protection: follow this link. In effect, this means that either a client must plan with knowledge of applicable statutory, constitutional, and current case law considerations and restrictions in mind, or try, to the extent legally and practically possible, to work around such considerations and restrictions via techniques such as pre-nuptial agreements, post-nuptial agreements, life insurance planning, use of business entities, and other planning techniques applicable to the specific client’s post-mortem planning goals. All the while, keeping in mind that estate creditors, and income and estate taxation, may also affect the decedent’s final estate after death.

Generally, no. If there are no assets to pass under the decedent’s Will or intestate, as the case may be, then Probate may be the doing of a useless thing. Why open a Probate case with the Circuit Court if there is nothing to distribute to Will beneficiaries or heirs?” However, the decision not to Probate should only be made after consultation with a competent, experienced, licensed attorney familiar with this practice area.

No, but it is customary to have the reading of a Will, or at least to provide family members or affected beneficiaries with a copy of the decedent’s Will, if any. Also, by statute, the original Will is to be deposited with the appropriate Clerk of the Circuit Court having venue of the estate Probate administration within ten (10) days of the will custodian learning of the decedent testator’s death: follow this link.

Generally, time, expense, publicity, and direct exposure to creditor’s claims.

The decedent’s Will is “proved up” to the Probate Court and admitted to Probate.  Will beneficiaries and omitted family members have the right to contest the Will, creditors of the decedent are protected from not being paid, creditors’ claims period can be shortened to 90 days vs. two (2) years without Probate, and taxes due by the decedent and the decedent’s estate are most likely to be timely paid using this formalized approach.  Unfortunately, not all would consider all of the foregoing “benefits” to be advantageous to the decedent’s overall post-mortem estate plan, in all circumstances.

Alternatives to the Probate of a decedent’s estate post-mortem through the Circuit Court are numerous, and are based on centuries of legal practice in England, the United States, and Common Law countries.  These alternatives may include, among other things, use of property law, such as joint ownership with survivorship rights and remaindermen provisions, contractual provisions which create rights to surviving named beneficiaries, Trust agreements, and use of business entities for ownership of “family” capital investments, such as large farms or real estate holdings.

Often a basic Trust agreement will be used not only for post-mortem asset distribution instructions, but also as a true Probate and Guardianship (of the Property) avoidance technique.  By naming a Successor Trustee, an alternate to the client is named to fulfill the client’s wishes and legal instructions in the event of the client’s death or disability.  In addition, flexibility can be built into the Trust agreement to address situations such as (i) the client changing the terms of the Trust, (ii) the client changing the beneficiaries of the Trust, (iii) estate tax and/or asset protection planning, (iv) special needs planning and alternatives, and (v) dynasty provisions and protections intended to apply to children and grandchildren in the future.

Yes, and that’s because the Probate estate, which will be covered and directed by the Will of the decedent, is the failsafe plan in U.S. law for assets which the decedent held titled to or is later determined to be entitled to receive, even though a central Trust agreement was designed to handle things for the decedent.  Usually the kind of Will employed in this case is called a “pour over” Will.  However, a particular client’s Will and Trust can be tailored to work together however is most appropriate for that client’s own needs and goals.

Yes.  A typical trust will be a revocable “living” trust, which a client is free to change or amend as they see fit during their lifetime.  The possibility that a client may become incapacitated or disabled prior to making their final intended change has given rise to using “trust powers” and “gift powers” in broadly drafted Durable Power of Attorneys under Florida Law:  follow this link.  In addition to a revocable trust, a client in some instances may benefit from an irrevocable trust.  Usually, this is either motivated by asset protection, Medicaid preplanning, or special needs planning considerations specific to the client’s own unique situation.   Often the trust design settled on will need to be coordinated with a client’s retirement plan, insurance plan, and financial plan.  Trust planning is more complicated and has more ambitious disability planning, chronic illness planning, and post-mortem plan goals than does basic will planning.