Frequently Asked Questions
1. What can estate planning do to help my family once I pass?
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. This statute was 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?
4. I already have a will, so what can you do for me?
5. Can I make my own will?
6. If I have little kids, what happens to them once I die?
7. How will my children get their inheritance?
8. WAIT- so how do I avoid my child getting their entire inheritance at 18?
9. Why should I bother making a trust if I already have a will?
10. What if I make a trust and I change my mind about what I wrote?
11. My child has special needs. How do I make sure they are properly taken care of?
12. All my assets are jointly owned. Do I still need a will?
13. I’ve already told my family that I don’t want any life-sustaining treatments. Why should I create an extra document that says the same thing?
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 both your biological and stepchildren inherit what you want them to, in the way you want them to, but having step-children can also 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.
16. How much is this going to cost?
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 over time 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 doesn’t deal with matters that arise before your death.
19. If I have a living trust, do I still need a will?
20. What makes up a well-designed estate plan?
21. What is a trust?
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 the authority to make important decisions for you. For example, you may sign a Power of Attorney to give someone the authority to make financial or medical decisions for you if you become incapacitated. It is impossible to predict if and when you will ever 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 from 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 that 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?
25. What if I create an estate plan and then I move out of Florida? Will my documents be valid?
26. What are medical directives?
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 that you put a plan into place that will reflect your wishes in 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 an inheritance based on your family dynamics, and so the best way to ensure that your child receives the inheritance that you want is to create a plan that directs this to happen in the way you desire.
29. What are death taxes? Do I need to pay them when I die?
Death Taxes are taxes on the assets of an individual’s estate or inheritance (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. Thus, it is very important that your plan takes this into account, and that it is changed any time your assets are near the exemption amount.
30. What is a “fiduciary”?
31. What questions should I ask myself before picking a fiduciary?
32. What is my “estate”?
33. Will my beneficiaries’ inheritance be taxed?
34. When should I update my documents?
35. Are handwritten or oral wills valid in Florida?
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 being 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 addition to the emotional consequences, there can be significant financial consequences.
37. Why are you asking me for information about my divorce?
38. We’ve already designated a permanent guardian for our children. What would the purpose of a temporary guardian serve?
39. What is a personal representative?
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 physically 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?
42. What is an ILIT trust?
43. I hate my child’s spouse. How can I make sure that they don’t take my child’s inheritance?
44. I looked at the will and there is no way that it is legitimate- what are my options?
45. What is a pour-over will?
A pour-over will provides that, when the settlor of a trust passes away, any assets owned at their death that aren’t already in their trust are to be added to their 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, so purchasing one now and naming it in your estate plan as your final resting place can save money and avoid any worries for your family.
47. How old should you be before you start thinking about estate planning?
48. I didn’t want to make a new will, so I just crossed out the parts of the will I didn’t like. Is this sufficient?
Actually, this may be seen as an act to revoke the entire will. To avoid this, it is best to consult an attorney regarding 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?
50. Can I disinherit whoever I want?
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
201 Alhambra Circle, Suite 802
Coral Gables, FL 33134
Phone: (305) 707-7126
Hours: Monday-Friday 9am - 6pm