FAQs

What is probate?

Probate is a process by which a court will oversee the transfer of assets when a person (the decedent) passes away. In Florida, the circuit courts of each county have jurisdiction over the probate process. The Florida probate code is found in chapters 731 through 735 of the Florida Statutes. By law, an attorney is required for formal probate administration in Florida. Ordinarily, assets that must pass through the probate court are those that are titled in the decedent's name only. Certain kinds of assets will pass without the need for probate administration. For example, a home that is owned jointly by a husband and wife will typically pass directly to the surviving spouse upon the death of the other spouse. Careful estate planning can help to reduce the cost of probate.

Will probate be more expensive if I die without a will?

In the State of Florida, as in most states, a person who passes on without a will is said to have died “intestate.” Just because someone dies without a will does not mean that taxes will be higher or that there will be a lengthy or expensive probate proceeding. Although it is ordinarily advisable to have a will in the State of Florida, if one passes away without writing a will, the law will step in to set the order of how assets will pass to the heirs of the decedent. Typically, if there is a spouse, the spouse will inherit at least half of the intestate estate. If the decedent dies leaving children and a spouse, and the children are also the children of the spouse, the spouse is entitled to the first $60,000 of probate assets and one half of the remainder of the probate assets. If the child or the decedent is not also the child of the spouse, then he estate is split down the middle between the spouse and children.

What are the major advantages of having a will?

A well-drawn Will is designed to give the probate court clear and concise directions on how the decedent wants his or her assets to be distributed to his beneficiaries. Additionally, a Personal Representative is usually named in a will. This person is the one who is designated by the Testator (the person who makes the Will) to handle the affairs of the Estate. The Personal Representative is typically called an executor in other states. A Testator who has minor children may designate a guardian in the Will. Furthermore, the Testator may give instructions for the creation of a children's trust that can delay the distribution of assets to children when they reach the age of eighteen. A parent can create a special-needs trust in a will to benefit a disabled child. Finally, a testamentary special needs trust for a surviving spouse can be created in a will.

What is a revocable "living" trust?

In a revocable trust, the grantor or settlor (the person who makes the trust) has the power to revoke the trust at any time. This means, for income tax purposes, that all the assets in the trust will be included in the grantor's gross estate for federal estate tax purposes. Typically, a “living" or revocable trust is an effective document to help reduce the size of a public probate estate in Florida state court. A trustee (the person appointed to handle the business of the trust) can be invested with powers on behalf of the grantor and can act on behalf of the trust in almost any capacity, if the trustee is given the appropriate power. A trust can provide for the capacity or disability of the grantor without the need for a costly and time-consuming guardianship. For larger estates, revocable trusts held by a husband and wife may result in a substantial tax savings upon the passing of the one spouse (Click here for the role a living trust can play in planning for incapacity).

What is an irrevocable trust?

An irrevocable trust cannot be revoked once it is signed. Assets that are transferred into the trust may be deemed to be a completed gift, and the carefully drawn irrevocable trust may protect assets from creditors. Irrevocable trusts and Medicaid planning may provide a way for seniors to have additional income in the event that he or she is required obtain Medicaid benefits for nursing home care. Proper planning is necessary in order to avoid the pitfalls that are likely to get in the way of providing the best benefit from Medicaid.

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