Frequently Asked Questions

1. What can estate planning do to help my family once I pass?

In addition to avoiding the fees and stress of probate, an estate plan can ensure that your family is aware of all your assets. If your family does not know about an asset, they cannot probate it, and the asset is lost. Right now, in Florida alone, there is over $1 billion of unclaimed assets. By creating an estate plan, you ensure that your family knows exactly what assets you have, where to find them, and receive access to them.

2. What happens if I don’t make a will?

If you die without a will your assets will be distributed per Florida’s intestacy statute, created based on what the legislature thinks you likely would’ve wanted, which may not be what you actually want.

3. If I make a will, will I still have to go through probate?

Yes, even if you make a will your family will have to go through the probate process. This process is where the instructions of your will are carried out.

4. I already have a will, so what can you do for me?

We can review your will and ensure it still reflects your wishes and values. Generally, we recommend you update your will approximately every three years. Why? The laws change, your family changes, your assets change. This is especially important if you’ve since gone through any major life change such as getting married, getting divorced, or expanding your family. By updating your will you can make sure that it reflects your ever-changing life.

5. Can I make my own will?

Florida does not recognize handwritten wills, even if it is written in your own handwriting and signed, unless all the necessary formalities are followed. So, while it is possible to make your own will, it is very difficult to ensure compliance with all the necessary formalities, and this could result in the estate passing per the intestacy statutes. It is therefore strongly recommended you consult an attorney in the process.

6. I have little kids, what happens once I die?

If you create a guardianship plan for them, until they are eighteen, they will be taken care of by who you nominate. If you don’t put any plans into place, the court will decide on a guardian based on what they believe is in your child’s best interest.

7. How will my children get their inheritance?

If your children are under 18, a guardian will be appointed and will have the authority to use your assets for the care of your child. Once they turn 18, they will receive their inheritance outright, because minors cannot inherit assets until they reach the age of majority.

8. WAIT- so how do I avoid my child getting their entire inheritance at 18?

This is a common worry among parents. In addition to worrying about misspending, parents too worry about addiction, severe mental illness, creditors, divorce, and other situations where the child may be at jeopardy of losing their inheritance. The best way to avoid this is to set up a trust that dictates how and when they will receive their inheritance.

9. Why should I bother making a trust if I already have a will?

By making a trust, you avoid the probate process. As opposed to a will, which is public record, the terms of the trust are confidential. You also have the added benefit of having control over your assets once you pass away. Avoiding probate alone is an excellent reason to set up a trust because the probate process is lengthy, expensive, and mandatory. By setting up a trust now, you’re avoiding the later stress and cost your family will have to handle. You likely will also avoid large estate taxes on your estate!

10. What if I make a trust and I change my mind about what I wrote?

If you create a revocable trust, that is a trust whose terms allow you to make changes during your lifetime, you can make whatever changes you want until the time of your death when it becomes irrevocable and unchangeable.

11. My child has special needs, how do I make sure that they are properly taken care of?

Create a special needs trust! By ensuring that there is a plan set up for your child you can avoid potentially jeopardizing any government benefits they may have, and also ensure that they are well taken care of once you pass.

12. All my assets are jointly owned. Do I still need a will?

Jointly owned assets don’t pass through probate. So, maybe this is a viable option, however there are several things to note. For example, you cannot use your will to override the joint ownership. Additionally, this opens the potential for unhappy family members to initiate litigation arguing the joint-owner were only added out of convenience, not to be a beneficiary. While this may help avoid probate, it can have unintended consequences in the long run.

13. I’ve told my family that I don’t want life-sustaining treatments, why should I create an extra document that says the same thing?

Even though you’ve expressed these wants, in the event of your incapacity emotions are running high and family members may fear that your wishes have changed, or disagree that they should be followed. By creating a living will you are unequivocally detailing your wishes, ensuring your family members will have the right guidance.

14. My spouse and I have children in common, but we also have children from other marriages, does this matter?

Yes! Not only does creating an estate plan ensure that all your children, both biological and step children, inherit in the way you want, but having step children can change the assets your surviving spouse is entitled to once you pass if you haven’t created a will.

15. I don’t have any biological babies, but I do have fur babies. How can I make sure my pets are adequately cared for?

You can actually make a trust for your pet! Just as you would for a biological child, you can ensure that your pet is taken care of by who you want, in the way you want, and appoint who you want to care for them.

16. How much is this going to cost?

We have good news. Although your plan is built from the ground up, we charge on a flat—not hourly—basis for all estate plans. That means you’ll know up front how much it will cost and there will be no surprises!

17. What is the difference between a will and a trust?

A will is a document containing instructions for the final disposition of your assets. Once the directions of the will are carried out through the probate process, it’s done. A trust, on the other hand, can last long after you pass away, through generations even! Therefore, it’s extra beneficial for those who want to structure the disposition of their assets after their death rather than pay it all out in one lump sum. Wills are public, trusts are private, wills are probated, trusts are not.

18. What is the difference between a living will and a last will?

Although they may sound similar in name, living wills and last wills have very different functions. Living wills provide your instructions regarding life support should you become seriously ill or incapacitated. A last will declares the disposition of your assets, among other things, but don’t deal with matters before your death.

19. If I have a living trust, do I still need a will?

A trust can only govern the property within it; all other property owned by the deceased will have to be probated. Therefore, it is certainly recommended to create a will even if you have a living trust, that way you can direct how your other assets will be distributed.

20. What makes up a well-designed estate plan?

A well-designed estate plan is only well-designed if it reflects your needs and wishes. For some, a simple will is a sufficient estate plan. For others, a well-designed estate plan may require the creation of one or more trusts, the additions of business succession planning, consideration of guardians for young children, planning for blended families, or more!

21. What is a trust?

At its core, a trust is a document that explains your wishes regarding whatever assets you want to be governed by the trust. Assets are put into the trust and then managed by someone else, per the rules of the trust, for the benefit of your designated beneficiary.

22. What is a Power of Attorney? Do I need one?

There are different kinds of Power of Attorney, but in general, a Power of Attorney gives authority for someone else to act on your behalf. It is important to choose someone that you really trust because they will have authority to make important decisions for you. For example, you may sign a Power of Attorney to give someone authority to make financial or medical decisions for you if you become incapacitated. It is impossible to predict if you will become incapacitated, so creating a Power of Attorney is certainly recommended, but this is especially important if you will be traveling internationally or going into surgery as a safety measure to ensure that a decisionmaker is appointed should an emergency occur.

23. I am worried my family will contest my will. What can I do to prevent this?

First and foremost, the number one thing necessary to prevent your family contesting your will is to ensure that it is executed with all required formalities. It can also be helpful to explain why you make certain decisions so your beneficiaries can understand why you chose this disposition, either in person before you pass or in your will. You can also create a living trust, which also avoids probate of the assets.

24. I am not wealthy; why do I need an estate plan?

If you’re over the age of 18 and own any property, you need an estate plan! The Florida legislature has designated the way your assets will be disposed upon your death. While this is their best guess as to what most people would want, it may not be what you want. Even if you have just one asset, wouldn’t you like a say in what happens to it upon your death?

25. What if I create an estate plan and then I move out of Florida? Will my documents be valid?

Generally, if a will is valid in one state, it will be recognized as valid in the new state. However, property laws can vary greatly between states, leading to unintended consequences in your estate plan. It is therefore recommended to update your estate plan per the laws of your new home state.

26. What are medical directives?

Medical directives are a document in which you can name a person to have authority to make medical decisions on your behalf should you become incapacitated or unable to do so on your own.

27. What happens if my family and I die in a common disaster?

If you and your family pass away in the same disaster, the outcome will depend on many factors, including whether or not you have a will and, if you do have a will, what it says—if anything—about simultaneous death. If this is something you’re concerned about you should discuss it with an attorney to ensure you put a plan into place that would reflect your wishes I this scenario.

28. How can I ensure that my child from my first marriage will not be left out of an inheritance?

You can do this with a proper estate plan! There are several factors that determine the inheritance based on your family dynamics, and so the best way to ensure that your son receives the inheritance that you want is to create a plan directing to do so.

29. What are death taxes? Do I need to pay them when I die?

Death Taxes are taxes on the assets of the estate, the inheritance of individual, or potentially both. These can be levied at the state or federal level. Some states impose this tax but Florida, for example, does not. However, there is still the federal tax on any assets above the exemption level. The exemption level is subject to change and so it is very important your plan takes this into account and is changed any time your assets are near the exemption amount.

30. What is a “fiduciary”?

A fiduciary is someone who you give authority to act on your behalf and are required to act in what would be your best interest.

31. What questions should I ask myself before picking a fiduciary?

Because the fiduciary has the authority to act on your behalf, the biggest question you should ask yourself is whether you truly trust this person to competently carry out the duties required of them. You should also consider if they’re organized, responsible, and whether they have the financial knowledge and skill to manage your assets well. You may want to reflect on how they use their own money and handle their own personal affairs to get an idea of how they may handle yours.

32. What is my “estate”?

Simply put, your estate is everything you own. Your estate will be broken up into smaller categories during the estate planning process and during probate, but right now your estate is simply everything you own.

33. Will my beneficiaries’ inheritance be taxed?

If your assets surpass the level of the current estate tax exemption—which includes life insurance policies—then without the proper planning, your beneficiaries’ inheritance will indeed be taxed.

34. When should I update my documents?

Generally, you should update your documents every 2-3 years. However, it is incredibly important to update these documents after any large life event, such as having a baby or getting a divorce, to make sure that your plan is still suitable.

35. Are handwritten or oral wills valid in Florida?

No, these are not valid. Even if you write out your will in your own handwriting and sign it, the will is still invalid, unless it follows all the minute intricacies required by the Florida Statutes.

36. I’ve seen those movies where a surprise family shows up at the funeral—does this really happen?

Yes, this does really happen, and it can have serious consequences for the disposition of the estate. Even if you have a will, the provisions can be overwritten in certain circumstances, such as a child born after the creation of a will. It is therefore very important that you be honest with your attorney about any and all family members. Otherwise, in additional to the emotional consequences, there can be significant financial consequences as well.

37. My spouse and I are already separated, why are you asking for my date of divorce?

Spouses have certain rights under Florida law when their spouse passes away. If you are not legally divorced, you are still considered married. Even if you think you’re divorced there may be issues unknown to you that result in the divorce not being finalized. This is something that can be addressed now to prevent many issues in the future.

38. We’ve already designated a permanent guardian for our children. What would the purpose of a temporary guardian serve?

Temporary guardians are those trusted individuals that are close with your children and can be there quickly in an emergency. If the long-term guardian you appointed for your child is several hours—or states—away it is important to designate someone who has immediate authority to care for your children until the permanent guardian can take custody.

39. What is a personal representative?

A personal representative is the person who administers your estate when you die. You can appoint this person in your will. If you don’t, then the court will appoint one for you.

40. How do I choose a personal representative?

Not only should you choose someone responsible who you trust to properly administer your estate, but Florida has certain requirements for personal representatives. If you choose an individual to be your personal representative, they must be a Florida resident or a close relative. They need to be at least 18 years old, mentally and physical able to perform the duties, and cannot be convicted of a felony.

41. What if I live in one state and have property in another state?

To do this, you will have to open a probate in each state. The state that the deceased did not reside in is called ancillary administration.

42. What is an ILIT trust?

ILIT stands for Irrevocable Life Insurance Trust. This is helpful in situations where your life insurance would be above the estate tax exemption, as life insurance benefits are subject to the estate tax.

43. I hate my child’s spouse. How can I make sure that they don’t take my child’s inheritance?

While there are many solutions, a great one is to set up a trust for your child. That way, they can receive smaller distributions over time, the risk of them receiving their inheritance and commingling it in its entirety with their spouse is reduced, and should they get divorced it therefore would not be considered a marital asset.

44. I saw the will and there’s no way that this is real—what are my options?

If you think the will may be fraudulent, it is possible to contest its validity. This can be an expensive and lengthy process that could lead to the Florida intestacy statutes (the distribution scheme the Florida legislature believes you’d want) governing upon the determination that the will is invalid.

45. What is a pour over will?

A pour-over will provides that, when the settlor of a trust passes away, that any assets owned at their death that aren’t already in their trust be added to the trust.

46. I’m very adamant on what happens to my body once I pass away. How can I reflect that in my estate plan?

You can detail your burial wishes and give authority to an agent to make those arrangements on your behalf in your estate plan. Not only is this a good idea to ensure that your wishes are followed, but it allows you to begin the process. For example, burial plots can be expensive, and so purchasing one now and naming it in your estate plan as your final resting place can save money and worry for your family.

47. How old should you be before you start thinking about estate planning?

There is no age to begin estate planning—in fact, the sooner the better! You never know when tragedy may strike, and you want to make sure that you have the capacity to make a will. If you put it off too long, it may be too late!

48. I didn’t want to make a new will so I just crossed out the parts of the old will I didn’t like, is this sufficient?

In fact, this may be seen as an act to revoke the entire will. It is best to consult an attorney for any amendments you may want to make to your will.

49. I have a tuition plan for my child, how does this play into my estate plan?

Unless you want to create a trust with specific provisions that follow the rules of the tuition plan, nothing is needed for the tuition plan.

50. Can I disinherit whoever I want?

Florida prohibits disinheriting spouses and minor children. However, if you have adult children, or you are unmarried, there are no limitations.

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The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask any of the Attorneys at Trust Counsel to send you free written information about our qualifications and experience. The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.

Trust Counsel, PL

357 Almeria Ave, Suite 103
Coral Gables, FL 33134
Phone: (305) 707-7126
Fax: 305-397-2277
Hours: Monday-Friday 9am - 6pm