Estate Planning for Survivors

What Is Estate Planning?

Estate planning addresses your major concerns for the future by putting legal documents in place to protect yourself, your family and your assets in the event you become incapacitated due to injury or illness or you die.

Estate planning is the process of planning in advance how your estate is to be managed in the event you are unable to do so yourself, as well as, how it is to be disposed of when you die. Having no estate planning documents in place means that your estate––the assets and financial wealth you have worked hard to accumulate––will be distributed by a probate court in accordance with the state’s intestacy law and you will have lost the ability to say which of your heirs should inherit what part of your estate.

What’s more, if you were to become incapacitated due to illness or injury, without the proper estate planning documents in place, your family will have to go to great lengths to gain the authority to manage your financial affairs and to make health care decisions for you during your period of incapacity.

Estate planning is an ongoing process that utilizes the creation of wills, trusts, powers of attorney, and beneficiary designations to achieve some or all of the following goals:

  • Drafting a last will and testament to specify how and to whom your assets will be transferred when you die
  • Specifying how your estate is to be managed if you become unable to do manage it yourself
  • Creating instructions for your care in case you become incapacitated and in need of medical care
  • Providing for the transfer of your business interest upon your retirement, disability, or death
  • Naming beneficiaries of your insurance policies, banking accounts, retirement accounts, and investment portfolios
  • Taking steps to avoid probate and to eliminate or minimize federal and state tax liability in order to preserve as much wealth as possible for future generations.

Estate planning allows you to prepare for a variety of potential circumstances, for example, a durable power of attorney will allow you to appoint someone you trust to assume control of your bank account, pay bills, and manage your finances when you can’t.

A health care power of attorney can do the same thing for medical decisions. In addition, you can draw up a living will or an advanced health care directive to record your wishes about the medical care you want or don’t want to receive.

Estate planning also uses Wills, trusts, and other instruments to transfer your property efficiently and effectively when you pass away. Good planning can reduce delays and stress, minimize taxes, and maximize the wealth your loved ones inherit.

You can use a Will to determine who gets your property, but if you want to avoid probate, put conditions on the transfer of your assets, or if your estate is large enough to be subject to estate taxes, the use of one or more trusts may be a better option.

Finally, estate planning allows you to protect vulnerable loved ones, for example, by naming a guardian to care for your minor children and by providing long-term wealth management for loved ones with special needs.

Your Assets Should First Be Listed in Detail

Every good estate plan starts with a thorough listing of all of your assets including:

  • Real estate;
  • Bank accounts;
  • Stocks, bonds, and other securities;
  • Personal property, like cars, jewelry, etc.
  • Life insurance policies, retirement accounts, and annuities.

In addition, you should make a list of all of your obligations and liabilities, along with details regarding:

  • The type of liability/obligation
  • The amount
  • The name, location, and contact of the individual or entity to whom the obligation is owed.

These listed should be reviewed and updated regularly or whenever an asset is acquired or relinquished or liability is assumed or satisfied.

Distributions to a Surviving Spouse

Married couples need to decide amongst themselves how they want to plan for the transfer of assets from one spouse to the other when the first one passes away. One of the ways to address this issue is by using a Bypass trust within an A-B trust strategy.

A Bypass trust, also referred to as a Credit shelter trust or Family trust, can allow the first spouse to die to ensure that any property held in the Bypass trust (the B trust) will be distributed to his or her beneficiaries (usually his or her children) after the surviving spouse’s death. The remaining estate assets that were not used to fund the Bypass trust may then be transferred to the surviving spouse outright or through another trust (the A trust).

Ultimately, the surviving spouse gets the income he or she needs from the B trust to maintain his or her standard of living and to raise the children. However, when the surviving spouse dies, only the A trust is included in his or her estate to be distributed as he or she sees fit.

This type of trust strategy is especially useful if you are a married couple with children from previous marriages because it allows you to segregate out, preserve, and protect your share of the estate so that it can ultimately be transferred to your children (as opposed to your surviving spouse’s children) after your surviving spouse dies.

Distributions to Family Members

There are essentially three ways to transfer property to your surviving family members either at your death (if you are single) or at the death of the second spouse (if you are married):

  • Outright: You can transfer assets to your family members outright through your will or by using beneficiary designations. While this is the least complicated way of transferring assets to family members, it is not always the most effective.
  • With a short-term trust strategy: This is helpful if you have children who are not old enough to manage their own assets. You can have a trustee manage the assets for them until they old enough to manage the assets themselves. Then you can have the assets transferred to them in either one lump sum or a number of installments. This will also allow you to have some control over access to the assets and to protect them from being squandered away by the beneficiary.
  • With a long-term trust strategy: A long-term trust strategy is the same concept as a short term trust strategy, but instead of the assets being distributed to the beneficiaries when they reach a certain age, the assets will remain in trust for the rest of their lives. If you want, you can also allow the beneficiary to become their own trustee once they reach a certain age. This way the beneficiary is in control of their own assets, but these assets will still be out of the reach of creditors and other unwanted outsiders.

Widow/Widower Estate Planning

Death is a major life event and the passing of a spouse should trigger a review of all your estate planning documents. Most estate planning documents, when drafted for a married couple, are set up so that a spouse is normally the primary agent and there is an alternate agent named in the event the spouse cannot act.

For example, a power of attorney will usually name your spouse as your primary agent for when you become unable to act on your own behalf, but also name an alternate, such as an adult child, close friend, or someone else you trust, who will act on your behalf should your spouse be unable to act for you. When this is the case, the estate planning document does not necessarily have to be updated after the death of your spouse.

On the other hand, any estate planning document that names your deceased spouse as your agent, but does not name an alternate agent, should be updated with the help of a qualified estate planning attorney. Even if the document does name an alternate, you still need to ask yourself if that individual is really the person you want to act on your behalf?

This is because, now that your spouse has passed away, should you be unable to act for yourself, this person will have all of the responsibility of managing your affairs. If this is not the person who you really want to entrust with this responsibility, you should meet with your attorney and update that document as soon as possible after the death of your spouse.

What Is A Revocable Living Trust and Why Are They Recommended?

A revocable living trust, or as it is simply called, a living trust is a legal document that you (the trust settlor) set up to hold and own assets, which may then be invested and spent for your benefit or for the benefit of others whom you name as beneficiaries of the trust.

So, why is this important?

This is important because any assets that you own in your sole name at the time of your death will most likely have to go through probate before being transferred to your heirs. Probate can be a costly and time-consuming process.

A living trust is a way to transfer ownership of assets from your name, where they would otherwise be subject to probate, to the name of a trust where they would not. So, the main and most direct advantage to using a living trust is that, if you use it correctly, your assets can be transferred to your heirs without having to go through probate.

Another reason why a living trust it recommended for most estate plans is that they allow you to do the following three things:

  • Manage the trust assets, as the trustee while you are alive and well;
  • Name a successor trustee who will manage the trust assets in the event you become mentally incapacitated and to specify how they are to be managed; and
  • Specify how your assets and property are to be disposed of after you die.

Estate Planning FAQs

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.
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 Florida Probate 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.
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.
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.
Several of the following documents are typically used as part of the estate planning process:
  • Simple or Complex Will
  • Pour-Over Will
  • Revocable Living Trust
  • A-B Trusts
  • Irrevocable Gift Trust
  • Spendthrift Trust
  • Durable Powers of Attorney Health Care
  • Surrogates
  • Living Wills
  • Deeds
  • Beneficiary Designations under retirement accounts and insurance policies
First, you will need to provide your family details, such as your current marital status, the names and ages of your children and the other beneficiaries of your estate, if any. These are the persons or organizations who will inherit your estate. If you plan to leave property to your children, you will need to decide at what ages the children will actually receive the property they inherit. You also must decide the shares of your estate that each beneficiary will receive.
If you have minor children then you must choose a guardian. This is the person who will take care of your children should you and your spouse die before your children become adults. The guardian will raise your children and manage their money.

You also need to provide a list of your assets and their approximate values in order to determine the most effective documents, such as the type of trust or trusts, to use in your estate plan.
The first step after arranging the funeral or cremation is to contact a knowledgeable probate attorney to initiate the court proceedings associated with the probate.  An attorney can be located online, or by requesting referrals from a local attorney that the family members may already have a relationship with.  Often an initial consultation with the probate attorney over the phone is all it takes to determine what type of probate is necessary and to initiate the engagement by executing a fee agreement.  All the pleadings required to initiate the probate can be drafted and emailed to the client for their review and execution.  Once the executed pleadings are sent back to the attorney, they will be e-filed with the probate court.

Ancillary Probate

Out of state family members and beneficiaries can handle every aspect of the probate administration process remotely, as long as they have professionals in FL to delegate responsibilities to.  The Florida Probate Law Firm, PLLC handles over 100 probates a year and we maintain an extensive referral list of local professionals to assist with ancillary services. An Experienced Florida Ancillary Probate Lawyer Can Help Probate can be a time-consuming and expensive process, lasting months or sometimes years before completion. So, the possibility of administering probate proceedings in multiple jurisdictions can be a significant undertaking.

In order to properly navigate the ancillary probate process in Florida you will be required to know the type of ancillary probate administration the decedent’s estate requires, who can act as the decedent’s personal representative, etc.

An experienced Florida probate lawyer can help you through the process from start to finish, and can even serve as personal representative, if necessary. Call the Florida Probate Firm today, or contact us online for a free consultation. We would be honored to assist you.
The short answer to the question is YES, but it also depends on how the decedent’s assets were titled at the time of death.  Just because the surviving spouse and/or children are the only beneficiaries, doesn’t automatically mean you can skip the probate process.  The existence of a Last Will and Testament also does not allow you to skip the probate process.  Probate is required whenever someone dies and there are assets in the decedent’s sole name with no beneficiary designations.  In response to the question posed above, if the decedent’s assets were all held jointly with the spouse, then there would be no reason for a probate because the assets would pass to the surviving spouse via rights of survivorship, outside of the probate process.  For example, if the title of the house is in both your name and your spouse’s name, the title of the house would automatically pass to you once your spouse dies.

Some assets bypass the probate process, even if the decedent mentions them in the Will. These assets pass to the surviving joint owner, or designated beneficiary upon the decedent’s death under the terms of the document that governs them. For example, a bank account with a payment on death (POD) feature does not go through the probate process, but passes directly to the person the decedent named as a beneficiary in the bank documents, often executed when establishing the account. Other examples of assets that typically pass to the beneficiaries according to the terms of their own documentation rather than the terms of the decedent’s will include investment accounts, retirement accounts, and life insurance proceeds.

If you are not sure whether a probate is required, you should consult an experienced probate attorney. It is a good rule of thumb that an original Last Will & Testament should always be deposited with the Clerk of Court in the county where the decedent resided at the time of death, whether you think a probate is necessary or not.  If assets are discovered many months or years after death and a probate is necessary, it will be easier to initiate the process if the original Will is filed with the clerk’s office.
The rights of surviving family members will largely depend on the laws of the state which control the probate administration. Assuming the decedent was a residence of the state of Florida at the time of death, the probate administration will be initiated in Florida.

If the decedent left a Last Will & Testament, that document will identify the intended beneficiaries of the estate, as well as nominate someone to serve as personal representative, aka executor. The Last Will & Testament may have specific language authorizing or restricting the rights of the beneficiaries, as well as the executor. Examining the provisions of the Last Will & Testament and/or Revocable Trust is an important starting point for determining rights. If the decedent left more than one Last Will and Testament, the most recently executed document will generally control.

Outside of the estate planning documents, family members will have certain rights available to them via Florida statutes. When someone dies without a Will, the state’s intestacy statute identifies default heirs to the estate known as intestate beneficiaries. Anyone that qualifies as an intestate beneficiary is granted legal standing to contest the provisions of a Last Will and Testament which is submitted to probate. Any beneficiaries named in previously executed estate planning documents also have the standing to contest.

Family members, especially children of the decedent, are often surprised to learn that a parent is entitled to disinherit any and all of their children. The only family member that cannot be totally disinherited is the surviving spouse, unless some type of prenuptial or postnuptial contract was executed. The surviving spouse of the decedent is the family member granted the most statutory rights which can potentially affect the probate administration. A spouse is entitled to the following:

1.) Elective Share 2.) Homestead Rights 3.) Family Allowance 4.) Exempt Property
• Florida elective share statute empowers the surviving spouse to elect to receive 30% of the elective estate, which includes the probate estate plus additional non-probate assets. • Homestead rights guarantee that the spouse is entitled to a life estate in the decedent’s homestead residence, or they can make an election to force the sale of the residence and collect 50% of the proceeds from the sale. • Family allowance is composed of payments to support the surviving spouse while the probate administration is ongoing, capped at $18,000. • Exempt property is composed of tangible personal property located in the decedent’s residence, as well as one vehicle, that go directly to the surviving spouse outside of probate and are not subject to creditor claims.

Contact Florida Probate Law Firm for a Free Consultation today at 561-750-1040.
Florida Statute Section 733.702 directs that to file a claim against an estate, a creditor shall file a written statement of the claim in the probate proceeding. When filing a claim, it is advisable to attach supporting documentation to substantiate the amounts owed by the decedent, or his/her estate, such as executed contracts or invoices.  If a decedent owed you money, it is important that you consult with a Florida attorney to make sure you follow the correct steps to get your claim paid.

There is a limited amount of time to file claims against an estate, so it’s pivotal you don’t miss the deadline.  With any formal probate administration in Florida, the court requires a 90-day (3 month) creditor period to be initiated by publishing a “Notice to Creditors” in a local newspaper.  During that 90-day period, any known or unknown creditors of the decedent will be able to file claims, and often times it’s a collections agency working for a creditor that ends up searching for these publications and files the necessary claims.  If the personal representative receives statements in the mail regarding unpaid bills or debts, then the attorney for the personal representative will mail those identified entities directly with the “Notice to Creditors”.  Any party that is mailed a Notice to Creditors, will need to file their claim within 30 days of receiving the notice, or within the 90-day creditor window, whichever expires later.

Once you file your claim, the personal representative of the estate will either pay the claim, object to the claim, or attempt to settle the claim for some reduced amount.  Other interested persons, such as beneficiaries, may also file objections to your claim.  If the personal representative or another interested party files an objection to your claim, you have only 30 days to make your next move, although the court may extend that time for good cause.  In order to preserve your claim after an objection, you will need to file an independent civil suit against the estate, which is an independent lawsuit in the civil division rather than in the probate court.  Filing an independent civil suit includes paying a filing fee for initiating the lawsuit.
As time goes on, and families drift apart, it is not uncommon to see siblings and parents all living in different states, or even different countries. Once someone passes away, in order to prepare the pleadings for the probate court, the petition must provide the full names and mailing addresses of all potential beneficiaries. Often the petition must provide an outline of the relevant family tree. While it’s easiest if the petitioner already has the correct contact information, there are certain public records searches which can assist in identifying the correct information.
In Florida, it is unusual for a Last Will and Testament to be deposited with the court prior to death. Most original Wills are held by the decedent among their personal belongings, so the first place to search for a Will should be inside the decedent’s home, or possibly in a safe deposit box owned by the decedent. You should also contact any estate planning attorney the decedent might have had during life in order to request a copy of the Will. Once the abovementioned routes have been exhausted you can search the probate court docket for the decedent’s name in order to determine if someone deposited a Will, or if anyone initiated a probate. The correct court to contact is the probate court located in the county of the decedent’s last residence. Most counties in Florida have probate court records available online.

Assuming there is no Last Will and Testament on the public record, many families would choose to move forward with an intestate probate administration. If you are certain there is a Will and/or Revocable Trust but the interested parties will not provide you with a copy, you can consult an attorney regarding petitioning the probate court to force production of the document. Keep in mind, you must be an interested party to make such a request. If you are not named in the Last Will and Testament as a beneficiary, you are generally not entitled to a copy simply because you make a request.
A Will has no expiration date, and upon the decedent’s death, the document becomes binding and it then has the power to direct the disposition of probate assets.  At the top of most Wills, there is a sentence which states “I revoke all previously executed Wills.”  This language establishes that the most recently executed version of the Will is meant to control the distribution of the estate.  Any assets in the decedent’s sole name will now be subject to that provisions of the Will.    It’s important to remember that a Will is valid during the life of the testator but has no power until death.  A potential beneficiary or family member cannot contest a Will prior to the death of the testator, since their beneficial interest has not vested.  The testator maintains the ability to change his/her Will and estate planning documents up until the time of death.
Before a Last Will and Testament is admitted to probate, it must be authenticated that the document was executed properly. Florida statute requires that a Will must be signed by the testator at the end, in the presence of two witnesses, and the witnesses must also sign the document in the presence of each other.

The most common way to authenticate a Will is via a self-proving affidavit which is signed at the time of executing the Will.  The self-proving affidavit is a short form that the witnesses sign under oath, confirming that the Will was executed properly.  The affidavit must be notarized since it will be submitted to the probate court in lieu of testimony on behalf of the witness.

The alternative route for authenticating the Will, when there is no self-proving affidavit, is to track down one of the witnesses and take their testimony regarding the execution ceremony.  A witness will be required to execute an Oath of Witness in front of a probate clerk or judge.  If the witness cannot travel to Florida to appear in front of a probate clerk, then you can petition for the appointment of a commissioner.  The commissioner is a notary that has been identified to assist with finalizing the Oath of Witness in lieu of a probate clerk.  This method is often required when the witness lives out of state or cannot travel.  If no witnesses can be located, the Florida statute allows the nominated personal representative from the Will to give testimony attesting the purported validity of the document via a Proof of Will.
Some people are surprised to learn that there is no centralized depository where wills are required to be filed before someone’s death for safekeeping, unlike in some other states. In Florida, after someone passes away, it is the family’s responsibility to file the original last will with the relevant probate court, which will be the circuit court located in the county of last residence associated with the decedent. For example, if you pass away and your home is located in Boca Raton, someone will have to find your last will and testament and file the document with the Palm Beach County probate court. Once the will has been filed, it automatically becomes a public record and can be viewed by anyone at the local courthouse, or a copy can be purchased from the clerk’s office and mailed to a designated party.

If you are a named beneficiary in a will, you have the statutory right to request and review a copy of the document, but only after the death of the decedent. You should submit your request in writing to the attorney who drafted the estate planning for the decedent, to the nominate executor of the estate, or to the attorney on record for the probate administration.
In an ideal scenario, the original version of the Last Will & Testament will be deposited with the court when probate proceedings are first initiated. In the event that the original Last Will & Testament cannot be located, a copy can be submitted to the court and a few additional pleadings will need to be submitted in order to verify the authenticity of the document. In order for a copy of a Will to be admitted to probate in Florida, one of the witnesses that was present for the original execution must execute an “Oath of Witness” attesting to the authenticity and this document must be signed in front of a probate clerk, often forcing the witness to travel to the local courthouse. If the witness is located out of state, then a commissioner can be appointed to act in lieu of the probate clerk. A commissioner is just a title given to a notary that has been designated and approved by the probate judge to take the Oath of the Witness.

Most families are advised to look for the decedent’s Last Will & Testament in the following places:

1.) The decedent’s home or last residence 2.) Safe deposit box leased by the decedent 3.) The attorney’s office which drafted the estate planning documents

Family members are often surprised to learn that Florida has no central depository for Wills to be held prior to the death of the decedent. While traditionally the estate planning attorney’s office would hold onto the original Wills for their clients, the more modern practice is to release the original documents to the client once the documents are executed and services are complete. If the Last Will & Testament is never found and it is believed that the original Will was last in the possession of the decedent, the default legal assumption is that the testator intentionally destroyed the Will. In this scenario, the surviving family members should move forward with initiating an intestate probate proceeding. If a Will is subsequently discovered, it can be deposited with the court and the judge will decide if it should be admitted to probate.

Contact Florida Probate Law Firm for a Free Consultation today at 561-750-1040.
A Last Will and Testament normally contains several important elements, which include the following:

1.) Name a personal representative, aka executor, to serve as the fiduciary of the estate. The role of the personal representative is to collect the probate assets, handle creditor claims and eventually make distributions to the final beneficiaries.  The Last Will and Testament often name a successor or alternative personal representative to serve in the event the first named person is unavailable.

2.) Name beneficiaries to receive assets. Some Wills identify specific assets to be distributed to particular individuals or entities.  A common provision found in Wills, stipulates that all tangible personal property shall be distributed to the spouse, or the children of the decedent.  Towards the end of the document there should always be a residual clause which states how all remaining property, not specifically identified, shall be distributed.

3.) The signature of the testator and two disinterested witnesses at the end of the Last Will and Testament. It’s also recommended that a self-proving affidavit be executed and attached at the end of the document.  This affidavit allows the original Will to be submitted to the probate court without additional testimony from the witnesses.
A Will has no expiration date, and upon the decedent’s death, the document becomes binding and it then has the power to direct the disposition of probate assets.  At the top of most Wills, there is a sentence which states “I revoke all previously executed Wills.”  This language establishes that the most recently executed version of the Will is meant to control the distribution of the estate.  Any assets in the decedent’s sole name will now be subject to that provisions of the Will.    It’s important to remember that a Will is valid during the life of the testator but has no power until death.  A potential beneficiary or family member cannot contest a Will prior to the death of the testator, since their beneficial interest has not vested.  The testator maintains the ability to change his/her Will and estate planning documents up until the time of death.

Conclusion

Estate planning for your survivors can get very complicated, but an experienced Florida probate attorney can assist you in identifying your assets, transferring them to your loved ones when you die, and minimizing taxes. In addition, a good Florida probate attorney will guide you through the estate planning process and help you determine which estate planning tools will work best for you and your estate planning goals.

Give the Florida Probate Firm a call at 561-750-1040 to arrange a free consultation. We look forward to serving you.