Probate and Trust Attorney
A Will is a document that expresses your “will” regarding what you want done with the assets of your estate. If you are an adult, you need a Will regardless of your age, whether you are single or married and whether you own property jointly with another. You even need a Will if you have a Living Trust (it’s called a pour over Will). If you don’t have a Will, the Florida Probate Code dictates how any assets in your name will be distributed.
In order to administer property that passes from a decedent to his or her heirs by the terms of a Will, probate proceedings are necessary. In other words, if you have just a Will, property or assets in only your name must go through probate proceedings before they can be distributed to the beneficiaries.
Probate proceedings are brought in the Circuit Courts of the State of Florida. They usually take from four to six months to complete; sometimes up to a year. Federally taxable estates may take much longer. When a Will is filed in Probate Court it becomes a matter of public record and can be examined by anyone from the plain curious to the collection agent.
Probate fees can be quite expensive; and of course, all such fees can be eliminated by simply avoiding probate proceedings. However, one should not get caught up in all of the “hype” surrounding the idea that probate should be avoided at all costs. In fact, probate proceedings are not all that mysterious, nor are they necessarily complex. As with all estate planning, before you decide you must have a Living Trust in order to avoid probate, you should consult with an attorney who is knowledgeable in estate planning along with wills & probate cases.
Living Trusts are a way to avoid probate. Assets held in the name of the Trustee of a Living Trust pass to heirs and beneficiaries without probate. The Trustee of the living Trust can be you. When you create a Living Trust, you never lose control of any of your assets or property because you are the Trustee. Thus, by creating a Living Trust, you save your heirs the costs of probate.
When you create Living Trusts, you can specify that if you become incapacitated a person of your choosing can take over your property and take care of you. This could enable you to avoid the impact of Florida’s Guardianship Law, since it would not be necessary to have a guardian appointed because the Living Trust takes care of the matter. Florida’s Guardianship Law is costly, cumbersome and, quite frankly, degrading. It is often a wise idea to create a “guardianship plan” in the trust document.
By virtue of a Living Trust, you can take full advantage of all of the Federal tax credits that the Internal Revenue Code allows. A couple with a Federally taxable estate without a proper estate plan, may very possibly find that at the death of the both of them, there will be a Federal Estate Tax obligation in excess of several hundred thousand dollars. This could be avoided by use of a properly drawn Living Trust in which language is used enabling both the husband and wife to take full advantage of the tax laws. Thus, on a Federally taxable estate, you could avoid paying any tax (as well as avoiding any probate fees).
Great caution should be exercised when having trusts drawn by non-lawyers since recent legislation has added to the complexity of trusts. Also, you should always meet with the attorney who is preparing your trust documents. Insist on it.
Contact our team for Probate and Trust administration assistance.