Estate Planning FAQs
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Frequently Asked Questions about wills, probate, trusts and power of attorney.
This is a great question, because Florida has so many people who come from other states and end up retiring in this state or go back and forth between states. It is a particularly important question to ask because if you have changed your residency here to the state of Florida, this will be where your estate is probated upon your death. So, the question of whether or not your out-of-state will is valid, has a complicated answer. Generally speaking, between the states, we have what is called full faith in credit. This technically means that, although all states have their own rules and laws, we generally get along and will honor the laws of other states as long as they do not violate the public policy of the state of Florida. What that means for an individual who has come to the state of Florida, made it their residence, and already has documents that were validly executed from the state where they came from, their will will be considered valid in the state of Florida. Now, it is important to still have this will reviewed, because Florida is a little special, our probate rules are a little more technical than some other states in this great nation. It’s important to make sure that all the formalities that are required under a Florida will are found in your out-of-state will. This will be particularly important as it relates to getting the will admitted to probate in the state of Florida. It does not mean that your will is invalid, it simply means that there may be a few more hoops that one needs to jump through before your will is actually admitted to probate and your personal representative nominated in your will receives their appointment from the court.
People will come in with a will and they have wanted to make changes, so they have crossed out what they wanted to make the change to, initialed it, and written over that, the change that they would like to make. Unfortunately, this is not valid in the state of Florida. Florida has very specific requirements when it comes to a signing for a last will in testament. If that change is not made with all of the formalities that are required with the execution of a will, the information that you crossed out and initialed will not be given effect. It will not be given effect even if you do not overwrite something in place of what you just crossed out. Florida is very specific about what it will accept as a will and the requirements that are needed to make those changes valid in the state of Florida. Be careful about making changes to your last will in testament in this manner. It is not going to be a valid change to your will. You will need to go see an attorney to assist you in making these changes, to ensure that your last will in testament is going to carry out your last wishes.
I hear this very often, and it does seem like the logical response. However, under certain circumstances, this is not always the case. In fact, several years ago the spouse was not even the 100% default beneficiary in an intact marriage, with children who were from the same mother and father. It is important to have a will. Currently, the determination of a spouse’s share turns on the categorization of that spouse. If the decedent was survived by children, all of whom are children of the surviving spouse, and the surviving spouse has no other children, that is children from a prior marriage of relationship, then the spouse will receive the entire intestate estate. However, if there are one or more children of the decedent, who are not also children of the surviving spouse, then the surviving spouse will only receive one half of the intestate estate. If the decedent does not have any children, and is survived by a spouse, then the spouse will inherit the full amount of the intestate estate. It is important to know where you fall in these organizations, because it will have a substantial impact on what your spouse may receive if you die with an intestate estate. Another good reason to put your will in order, so that you can make sure that your assets end up where you want your assets to end up.
In the state of Florida there is no such thing as a default power of attorney. A power of attorney is a document that is put in place by an individual whom we refer to as the principal. The principal nominates and appointments whom they would want to serve as their power of attorney. The powers granted within the power of attorney need to be specified, and if they are not specified by that power of attorney, then no one has the authority to take those actions, not even the person who may have been nominated. For if the power has not been granted, the agent may not act. It is very important to put a power of attorney in place, so that there is somebody, who you trust, who will be able to take care of your financial and property matters in the event you are unable to do so. Because there is not statute under the state of Florida that will allow another individual, who has no ownership interest in that asset, the authority to access that asset and or direct how it will be applied.
It is a common misconception that the state of Florida will receive assets when you pass away. The state of Florida actually goes to great lengths to ensure that an individual who has not put a will in place has their assets go to family members. Our laws of intestacy take the intestacy line to great extremes to make sure that the assets of a decedent do not asheet to a state. It is important for you to have a will, but the reason to put a will in place is not so that the state of Florida will not receive your assets. It is highly unlikely that the state of Florida will be receiving your assets due to the fact that they have such strong intestacy statutes and a strong desire for your assets to go to your heirs.
Under the laws of the state of Florida, an individual creating a will is under no obligation to leave their children their estate. There are certain rules in respect to a surviving spouse and a share in your estate, which is what we call the elective share. However, this does not apply to your children. It has been a well settled law in the state of Florida for many years that an individual can leave their assets to whom they choose to leave their assets to, and if they so choose to disinherit their children or other family members other than a spouse completely, then they may do so. It is why I say this is your will, you get to decide how you want your assets to be distributed and to whom you want your assets to be distributed. It is a good thing to have your will put in place, because it puts you in control of how your assets will be distributed after you pass away.
No, you do not need to have a family member serve as your personal representative under your last will in testament. It is certainly not a requirement, however there are certain requirements that must be met, or the person that you nominate may be disqualified by virtue of not meeting those requirements. First of all, that person must be 18 years or older, such that they are able to have the ability to contract. The person must not have any felony convictions or they will automatically be disqualified. The person, if he is not related to you, must be a resident of the state of Florida. If the individual whom you wish to appoint is not related to you by any blood relation, then that individual will not be allowed to serve if they are not a Florida resident. However, children who are out of the state of Florida or other people who would qualify under the general class of heirs would be qualified under the state of Florida as your representative if you so chose. Again, this highlights the need to put your will in place, so that you can be the person in control of making these decisions about your estate after you pass away.
Many times people come into my office telling me they do need a trust, and sometimes this is an accurate statement. However, sometimes this is merely something they have repeated because somebody has told them or they heard somewhere that a trust is the way to go. Sometimes it is the way to go, but it is circumstantial and it is based on the factors that we will discuss when we sit down and go over your assets, goals, and how you determine your state to be administered. Not everybody needs a trust. They are valuable tools, but they are only one of many tools we have available to us as we structure your estate plan. It is important to be aware that a trust is an available mechanism for the transfer of your assets. However, it is only one item to be considered as you review your estate, estate plan, and how you see the transfer of your wealth. This is something that we will discuss in detail when we sit down at a consultation.
This is a really interesting question, and one that I had never really considered until a client came in from a Midwest state, and his will had been recorded in the state in which he formerly resided. This presented a particular problem when he wanted to make a new will. The problem was that the old will was recorded in the court house in a county in which he formerly resided. Under the laws of the state of Florida, the most recently executed last will in testament is the last will in testament that is admitted to probate in the state of Florida. However, the recorded will from that other state created an expectation in a beneficiary for distribution that the decedent no longer wished to provide for. This recorded will made its way to the probate court in the state of Florida and the beneficiary asserted that that particular last will in testament was the last will in testament that should be admitted to probate. In the state of Florida we do not record wills. Your will is not considered your final testament until you have passed away. Only the last executed document is admitted to the state of Florida. It is submitted to the probate court and is administered under the laws of the state of Florida.
Of course everybody is cost-conscious in this day and age. Asking how much an estate plan costs is of great import to many people. Generally, I will present my fees based on a package price. It consists of the documents that I believe are the basic necessary documents that every individual should have in their estate plan. The price will increase based on the complicated nature of issues that come up during the consultation. We tailor the fee package based on those additional requirements that you may have in your particular estate plan. It is difficult to give a simple answer to the price. However, as a general rule, a basic estate plan, which provides you with five documents will start out at a cost of $950. This will increase if you are doing packages for husband and wives, which we do quite frequently, and of course will be increased if there are trust issues involved in these. However, the price to pay for these documents is nothing compared to the knowledge of knowing that you have taken the required steps to make sure that your assets are administered by whom you want, and that those assets are going to be transferred to the individuals to whom you want them to be transferred. Don’t let cost be an issue when it comes to creating this plan. It is very difficult to put a price tag on peace of mind.