Estate / Probate / Trusts / Wills
Estate planning ensures that when you pass away, your assets and property—your legacy—are managed according to your wishes. Every individual has an “estate,” be it a bank account, physical property, or life insurance. It is your right to decide who among your family and friends receives all or part of that estate. The estate planning lawyers at the 850-Call-Joe Law Firm can help you secure a plan while also minimizing taxes, legal fees, and court costs as much as possible under current law. We service the entire central Florida region, including Orlando, Daytona Beach, Apopka, and more!
What is an Estate?
An estate is your net worth according to the law. Your estate can include bank accounts, home(s), car(s), and any other smaller assets, such as personal belongings. Your estate also includes any rights and licenses you may own, such as intellectual properties and even your social media accounts. Aside from what you own, your estate also includes everything you owe: mortgages and other debts. In most cases, these debts will need to be settled before the beneficiaries of your estate receive the monies and assets you’ve left to them.
What is Probate?
Probate is the judicial process that establishes the validity of the last will and testament. During the probate process, the deceased person’s estate is properly distributed to the heirs and designated beneficiaries. Any debt owed to creditors is paid off during the process. If there is no will and testament, assets are distributed according to Florida Statute Section 732.
What is Estate Planning?
Estate planning guides the distribution and management of your estate at the time of your death. The process of estate planning relies on the use of wills, trusts, insurance policies, and other potential arrangements. These legal tools are used to reduce administration costs and transfer tax liability. Healthcare and non-healthcare related decisions also fall under estate planning. These decisions are directed by powers of attorney, living wills, and healthcare surrogate documents. Whether it be a birth, a wedding, a divorce, an accident, or death of a loved one, it is always prudent to have a plan in place to protect what matters most should a life-changing event occur within your family.
Who Receives Your Estate?
It is your decision on how your assets will be distributed in the event of your death. However, if you do not have a plan in place, Florida Statute Section 732 guides the distribution of your estate. According to Florida law, should your death occur intestate (without a valid will), your surviving spouse is awarded the entire estate (if you have no children from a previous marriage). If you are survived by children from a previous marriage, the children receive half of your estate (divided equally among them) and your spouse receives the other half. If you are not survived by a spouse, your children receive your entire estate (divided equally among them). If you are not survived by children or a spouse, your surviving parents receive your estate. If you are not survived by parents, the estate will be awarded to relatives. If you have no heirs to claim your estate, it is awarded to the State of Florida.
Without an estate plan, the legal expenses can be quite costly, draining your estate of wealth. Furthermore, surviving family members may dispute how your assets are divided and who is entitled to them. The only way to guarantee your estate is handled according to your wishes is to ensure you devise a plan with a trusted attorney. Orlando Probate Attorney Joe Knape can guide you through the process of estate planning.
When Should Estate Planning Begin?
There is no better time than now to begin estate planning. Think of it as an insurance policy. We maintain insurance to cover us should the unexpected happen. Estate planning is no different. Estate planning ensures your loved ones aren’t burdened with the logistics of handling your estate should you pass or become incapacitated. The thought of planning your estate may feel overwhelming, but you can always take it in steps and changes may be made down the road. Getting professional help from an experienced, licensed attorney ensures you cover your bases.
What Documents are Necessary During Estate Planning in Florida?
Many people think they can come up with an estate plan on their own. While this is possible, it can be a very overwhelming process. Estate planning can involve multiple legal documents that include:
- Last Will and Testament
The last will and testament is the most important document. Your will memorializes how you would like your property and assets to be distributed at your passing. Your last will and testament benefit both you and your family. An untimely passing without a will may leave your family guessing and fight over how to distribute the property and assets you left behind.
In the event a family member believes your will was not executed with a sound mind, he or she may choose to contest it. This often happens when the family member finds the decisions of the will unfavorable. Contested will litigation can be expensive. Therefore, it is important to draft your will with an experienced family law attorney such as myself. Contact the 850-Call-Joe Law Firm today and allow me to help you draft your last will and testament.
- Durable Power of Attorney
The durable power of attorney is another legal document that protects you and your estate should you become incapacitated. It is your authorization to allow another individual(s) to execute legal documents on your behalf should you become disabled or mentally incapacitated. Powers of attorney are a must-have as part of any estate planning package.
- Designation of Health Care Surrogate
The designation of health care surrogate is a fairly new instrument in estate planning, but it is an important one. When properly executed, the designation of health care surrogate authorizes an individual to make medical decisions should you become disabled or incapacitated. Unlike the durable power of attorney, many people direct their health care surrogate to function in a limited role. However, a medical privacy waiver is often drafted as well to ensure the surrogate and specific individuals can obtain necessary medical information. HIPPA and other healthcare laws have made this waiver necessary.
- Irrevocable Trust
Another common instrument used in estate planning is an irrevocable trust. A trust shelters the tax consequences of your assets until the benefiting generation passes away (and sometimes the generation after them). A minor drawback to establishing an irrevocable trust is that the distributions made to beneficiaries are subject to strict limitations. The government allows you to protect assets in the trust from taxation, but they will recover the taxes once the trust has run its course. The goal of the trust is to keep assets within the family for a longer period without constant tax scrutiny.
A poorly designed trust can become a tax issue if the grantor possesses a form of control over how/when/where distributions are made. Control is a sign the trust is not irrevocable since the grantor has the ultimate say in what becomes of the assets. Once the grantor passes away, the IRS may require the assets in the trust to be included in the estate. Therefore, it is important to secure the help of an experienced family attorney when drafting an irrevocable trust.
Who can be the executor of the will?
The executor of the will must be affirmed by the probate court. This individual oversees the distribution of the decedent’s assets, within an appropriate time frame, according to the last will and testament. In the state of Florida, the executor can be an individual at least 18 years of age who is mentally competent and able to perform the duties required of him or her.
If this individual is a spouse or an immediate family member, he or she must be a Florida resident. Unless expressly waived by the will, the executor must not have any felony convictions.
If the court finds the nominated executor to be unfit or the individual declines responsibility, the court will ask the surviving spouse for another recommendation. If the decedent has no surviving spouse, the court will ask the beneficiaries for a majority decision to appoint another executor. If a majority cannot be obtained, the court will call a hearing to appoint a new executor.
Why You Need a Probate Attorney in Orlando
If you are the executor of a last will and testament, you must seek help from an experienced probate attorney. Many issues can arise during the probate process. Even in the event, the probate process runs smoothly, it can be overwhelming for you if you have no legal experience.
Our Orlando probate attorneys can provide you with instructions and appropriate time frames given your circumstances. Contact the 850-Call-Joe Law Firm today and get a FREE consultation with a highly rated estate lawyer in Florida today!