When should I prepare my Estate Planning?

Estate Planning is an ongoing process and should be started as soon as one attains the age of majority or has any measurable asset base. An individual should utilize their estate planning for the following stages of life:

During life when healthy: There are plenty of reasons to plan for life, even if you stay healthy and never become incapacitated. Some of the main reasons why many clients choose to prepare their estate plan is for their children, retirement, risk and general accumulation of wealth.

During life when incapacitated: A plan should be in place for the event of mental or physical incapacity, which is the physical or mental inability to do something or manage one's affairs. During that time, that individual will need someone to help make financial and medical decisions for them, and possibly to assist with their or their children's living arrangements. This can all be accomplished through estate planning.

At death: Estate Planning allows for your assets to go to their intended beneficiaries. Many of the vehicles used in estate planning can avoid probate, taxes, and provide support for your loved ones.

After death: Planning for the continuation of your wealth after death is known as legacy planning. Legacy planning can ensure the well-being of heirs for generations.

What does my estate include?

Your estate is everything that you may own: real estate titled in your sole name or as tenants in common, bank accounts, your share of any joint accounts, a business, retirement accounts, investment accounts, life insurance policies, and annuity contracts. This list is for informational purposes and is not exclusive.

Some assets may be titled in a particular manner or have beneficiary designations, thus they will not be included in your estate. It is advised that when title is analyzed or beneficiary designations are created, you consult with your lawyer and financial adviser. Mistakes in ownership and beneficiary designations can cause increases in estate taxes owed and the potential for assets to require Probate.

How long is my Will valid?

If your Will is executed properly, your Will is valid until you modify or revoke it in the manner required by law. Your Will can be changed as many times as you prefer, as long as you have capacity and there is no presence of undue influence, duress or fraud.

Often times, clients modify their Will when there has been a change in circumstances that either questions the adequacy of their Will or the nature and amount of their assets have changed. Such circumstances may include but are not limited to: marriage, birth of children, divorce, or tax law amendments. If you would like to make a change to your current estate planning, call Spiegel Law, PLLC at (727) 221-0991.

May I dispose of my property in any manner by creating a Will?

While some property may be transferred by a Will, there are some interests in property that cannot be disposed of. When dealing with certain types of property, the right of the owner terminates upon death and is automatically transferred to the next owner. Some examples include: Homestead; a life estate; and property owned as Joint Tenants with the Right of Survivorship or Tenants by the Entireties.

You may not disinherit your spouse without a properly executed prenuptial or postnuptial agreement. In Florida, a surviving spouse may choose between taking his or her share under the Will or the portion that is determined under Florida's Elective Share Statutes. Often times, this may be complicated for the surviving spouse. Call us today for assistance in determining your share.

What is a Revocable Trust?

A Revocable Trust, also referred to as a Trust Agreement, is created by a Grantor. This Grantor has the power to manage their assets during their lifetime and distribute their remaining assets after their death. The term Revocable means that the Grantor may modify or terminate the Trust at any time during their life, so long as they are not incapacitated.

Generally the person who is the Grantor is the Trustee for the remainder of their life. However, the Grantor may appoint another individual, bank, or trust company to serve as the Trustee for their Trust.

Why do I need a Will when I create a Trust?

If a Will is drafted and executed properly, it will control all property in your name at the time of death. A Trust is an addition to a Will and only handles the property that is titled into the Trust. Therefore, any property that is left out of the Trust, whether intentional or not, can be administered in accordance with your wishes.

What is Probate?

Probate is simply a court-managed process in which the assets of a deceased loved one are gathered, managed and distributed. If there is a Will, then the assets are distributed in accordance with the decedent's wishes. If there is not a Will, then the decedent is considered to have died intestate and Florida statutes dictate how and to whom the assets are distributed.

Although this may seem straight forward, probate can be a very complex process. We routinely handle all phases of probate and estate administration, including: validating a will with the probate court, filing all required notices, inventorying and appraising estate assets, paying outstanding debts and disputing creditor claims, final distribution of the estate assets, and closing the estate.

Because administering an estate can be a long and costly process, we often advise clients to put a comprehensive estate plan in place to avoid probate proceedings down the road. If you have questions about estate planning or have been named the personal representative of a loved one's estate, call our office today at (727) 221-0991 for a free consultation.

Why is Probate necessary?

Probate is necessary to transfer ownership of the decedent's assets to the decedent's beneficiaries and ensure that all creditors of the decedent have been paid.

If the decedent had a Will: unless a Will is admitted to the Probate court, the assets will not be transferred to the intended beneficiaries without a Probate administration.

If the decedent did not have a Will: Probate is necessary to transfer the assets to the decedent's beneficiaries, which is determined by the Florida Statutes.

What types of Probate exist in Florida?

There are two types of Probate administration under Florida law: formal administration and summary administration. Summary administration is available for those whose estate assets (less exempt property) are less than $75,000 or to those who have been dead for longer than two years. Formal administration is for those whose estate assets are larger than $75,000. Florida also provides a non-court supervised alternative, which is called Disposition without Administration. This is only available in limited circumstances.

What are the initial steps involved in Probate?

Probate Papers: Probate papers are to be filed with the clerk of the circuit court in the county that the decedent resided in at the time of death. If there was a Will, the custodian must deposit the Will with the clerk within 10 days of receiving information that the Testator is dead, per the Florida statute.

Personal Representative: If there was a Will, the judge will determine whether the Personal Representative appointed in the Will is qualified to serve. If the Testator died intestate, or without a Will, then the judge will appoint the surviving spouse, if applicable, to be the Personal Representative so long as they qualify and do not decline to serve. If there was no qualified surviving spouse or they declined to serve, then the majority interest of the decedent's heirs may select the Personal Representative. If the decedent's heirs are not able to agree, then the Judge will hold a hearing and select the Personal Representative.

Letters: If the Personal Representative is qualified and willing to serve, then Letters of Administration will be issued.

What are the duties of the Personal Representative?

The Personal Representative is responsible for the administration of the estate in accordance with Florida law. Some duties include but are not limited to: identify, gather, and safeguard the decedent's Probate assets; publish the Notice to Creditors in the local newspaper; serve a Notice of Administration on interested parties; conduct a diligent search for known or reasonably ascertainable creditors; pay valid claims and object to or defend improper claims by creditors; file tax returns and pay any taxes due; pay expenses out of the estate for the administration of the Probate; distribute Probate assets to the beneficiaries; and close the Probate estate. In Florida, the Personal Representative is the same as the following terms: executor, executrix, administrator, and administratrix.

Probate can be very complex and it is always recommended that a Personal Representative hire a qualified attorney to assist with the process. The Personal Representative may be liable to the beneficiaries for any harm from mismanagement of the Probate estate. If you have been appointed as Personal Representative or have questions regarding your rights, contact Spiegel Law, PLLC.

Who can be a Personal Representative?

Individual: To qualify as Personal Representative, the individual must be at least 18 years of age and one of the following must apply: the individual is a Florida resident, or the individual (regardless of residence) is a spouse, child, parent, sibling, or other close relative. An individual is not qualified if they are under the age of 18, mentally or physically unable to perform the duties, or have been convicted of a felony.

Bank: To qualify as Personal Representative, the bank must be qualified and authorized to exercise fiduciary powers in Florida.

Trust Company: To qualify as Personal Representative, the trust company must be incorporated under the laws of Florida.

How long does Probate take?

Probate can be a lengthy process and is often considered complicated when you are unfamiliar with how that process flows. At a bare minimum, a notice to creditors runs for a three month period. Then the personal representative must add in the time to file all the legal documents with the Probate court. Delays may arise if there are disputed claims by creditors or real estate is required to be sold.

What are Probate assets?

Your Probate assets may include: real estate titled in your sole name or as tenants in common, bank accounts, your share of any joint accounts, a business, retirement accounts, investment accounts, life insurance policies, and annuity contracts. This list is for informational purposes and is not exclusive.

Some assets may be titled in a particular manner or have beneficiary designations, thus they will not be included in your estate. It is advised that when title is analyzed or beneficiary designations are created, you consult with your lawyer and financial adviser. Mistakes in ownership and beneficiary designations can cause increases in estate taxes owed and the potential for assets to require Probate.

What are the rights of the surviving family members?

Surviving family members may have some rights, regardless of not being provided for in a Will or if there was no Will. Some examples of rights include but are not exclusive: Homestead, Elective share, Family allowance, and Pretermitted spouse or child.

A spouse may have waived these rights if a prenuptial or postnuptial agreement was signed. These rights may not apply if an individual was intentionally disinherited from a Will. Contact our office to schedule a free consultation and discuss your rights!

Who is compensated for a Probate administration?

Personal Representative: A Personal Representative may be compensated in the following manner: the reasonable amount as set forth by the Florida law, as set forth in the Will, as set forth in a contract between the Personal Representative and the Decedent, as agreed by the Personal Representative and those who will be impacted by such fee, or as determined by the judge.

Attorney: An attorney may be compensated in the following manner: the reasonable amount as set forth by the Florida law; as agreed amongst the Attorney, the Personal Representative and those who will be impacted by such fee; or as determined by the judge.

Other Professionals: If services were solicited to administer the Probate, those professionals are entitled to reasonable compensation.

What does it mean to administer a Trust?

Trust Administration means that a Trustee is responsible for managing the Trust's assets and distributing them according to the requests and guidelines contained in the Trust Agreement. A Notice of Trust is filed with the court. The purpose of this filing is to put creditors on notice of the existence of the trust and their right to enforce their claims. Assets that are in a decedent's Revocable Trust are part of the gross estate for determining federal estate tax liability.

What are the duties of a Trustee?

The Trustee is responsible for the following duties: file a Notice of Trust with the clerk of the court; identify, gather, safeguard, and inventory the decedent's Trust assets; determine the fair market value of each asset; secure the assets until they are able to be distributed to the beneficiaries; manage the Trust assets in a prudent manner on behalf of the beneficiaries; maintain banking and tax records for the Trust; pay legitimate final bills and debts; file tax returns and pay any taxes due; and distribute Trust assets to the beneficiaries in accordance with the instructions contained in the Trust Agreement.

Administering a Trust is not always a simple task, and it's often helpful to have an experienced attorney assist in the process. If you are the nominated Trustee or have questions regarding a Trust, contact Spiegel Law, PLLC.

Who may act as Trustee or Successor Trustee?

Unlike a Will, a Trust may name almost anyone as their Trustee or Successor Trustee. Trustees may include any individual, whether a family member, friend, or professional advisor; a corporate trustee; or a bank or trust company. This is different than a Will because state law does not require the Trustee to be related to the Settlor or to live in Florida.

Does a Revocable Trust avoid Probate administration?

The manner in which your assets are titled is crucial in order to successfully avoid Probate administration. Once a Revocable Trust is formed, it is critical that your assets, such as bank accounts, real estate, and investments, are formally transferred to the Trust. This process is called funding your Trust. When certain assets are not transferred into the name of the Trust, they may be subject to Probate.