Frequently Asked Questions about Estate Planning
- Don't only wealthy people need estate planning? No, literally everyone needs some form of estate planning. Through estate planning done by a lawyer, a person creates certain legal
documents such as a power of attorney, designation of health care surrogate, will, or trust, in which the person expresses his or her wishes with regard to the person who will manage his or her affairs and property in the event of incapacity and who will receive his or her property after death. Estate planning can range from the very simple to the very complex, but everyone needs it.
- What is the difference between a will and a trust? Under Florida law, there are two legal documents through which a person can express his or her testamentary intentions, in other words, what is to be done with his or her property after death. The traditional document is a will. More recently, revocable trusts have become popular. Each has certain pros and cons. Neither one is always the better choice. As I formulate your estate plan, I will recommend one or the other as appropriate for you and explain why.
- Does a will control the disposition of all my property? Not necessarily. Most people hold some of their property in joint names with others or have designated beneficiaries on financial accounts and life insurance. The disposition upon death of that property is not controlled by a person's will. A will primarily addresses the disposition of property that is in the sole name of the decedent a the time of death.
- If I have a will, will my estate need to go through probate? If a decedent dies owning property in his or her sole name, then the transfer of that property to those who are designated to receive it under the decedent's will requires a court proceeding called probate. Through probate the court validates the last will of the decedent, winds up the affairs of the decedent's life, such as paying creditors, and distributes the decedent's property to those who are entitled to it. In Florida, there are several forms of probate ranging from the simple to the more complex. Various factors come into play in determining which is appropriate for a given estate.
- If I have a trust, can I avoid probate? Yes. A properly drafted and funded trust can pass the decedent's assets without a probate proceeding. This is one of the advantages of a trust over a will. Trusts, however, are more complex and expensive to create and maintain. Whether a trust is appropriate for you will be determined in consultation with the attorney.
- If my estate goes through probate, will the State of Florida charge a lot of fees? The only government fee that is charged in a probate proceeding is the court filing fee which is currently less than $400. Any taxes or other obligations which are owed by either the decedent or his estate are not affected by whether the estate is probated or not.
- Can my will or trust be contested? Any person who has an interest in your estate has the legal standing to challenge a decedent's will or trust after death. Trusts can be contested in the same way as wills. Florida law, however, has very limited grounds on which a person can challenge a will or trust. The fact that the decedent excluded someone, such as a child, from his or her will or trust, is not legally sufficient grounds for challenging the will or trust.
- If I have a will made in another state, do I need a Florida will? Florida recognizes as valid any will made in another state if it is valid under the law of that state. But if you die a resident of Florida, Florida law will apply to your out of state will. Since your out of state will was not drafted under Florida law, problems can arise. Therefore, it is generally advisable to have a will prepared by a lawyer in accordance with Florida law if you are a resident of Florida.
- If I give someone a power of attorney to transfer my property, do I still need a will or trust? A power of attorney is a legal document by which you can grant to another person (usually a spouse or child) the legal authority to act on your behalf with regard to certain legal and financial transactions, such as transferring property, accessing a bank account, or filing an insurance or benefit claim. A power of attorney, however, dies with the person and cannot be used post-death to distribute a decedent's property. It is not a substitute for a will or trust.
- Estate Planning Terminology. Go here to find definitions of common estate planning terms and more information on estate planning: Estate Planning Information on FindLaw.com