Practice Areas
Serving the Greater Tampa Bay Area
ESTATE LAW
Estate planning is a process. It involves people--your family, other individuals and in many cases charitable organizations of your choice. It also involves your assets and all the various forms of ownership and title that those assets may take. As you plan your estate, you will consider: • How your assets will be managed for your benefit if you are unable to do so • When certain assets will be transferred to others, either during your lifetime, at your death, or sometime after your death • To whom those assets will pass Estate planning also addresses your welfare and needs, planning for your own personal care and health care if you are no longer able to care for yourself. Like many people, you may at first think that estate planning is simply the writing of a will. But it encompasses much more. As you will see, estate planning may involve financial, tax, medical and business planning. A will is one part of that planning process, but other documents are needed to fully address your estate planning needs. The purpose of this material is to summarize the estate planning process and how it can address and meet your goals and objectives. As you consider it further, you will realize that estate planning is a dynamic process. Just as people, assets and laws change, it may well be necessary to adjust your estate plan every so often to reflect those changes.
WHAT IS PROBATE?
Probate is the court-supervised process developed under Florida law which has as its goal the transfer of your assets at your death to the beneficiaries set forth in your will, and in the manner prescribed by your will. It also provides for the relatively quick determination of valid claims of any creditors who have claims against your assets at your death. At the beginning of probate administration, a petition is filed with the court, usually by the person or institution named in your will as Personal Representative. After notice is given and a hearing is held, your will is admitted to probate and a Personal Representative is appointed. If you die "intestate" (that is, without a will), your estate is still subject to probate court administration and the person appointed by the court to handle your estate is known as the "administrator." If the assets in your name alone at your death do not include an interest in homestead real estate and have a total value of less than $75,000, then generally the beneficiaries under your will may follow a summary statutory procedure to effect the transfer of those assets pursuant to your will, subject to your debts and expenses, without a formal court-supervised probate administration. Anything over that amount will require a formal court-supervised proceeding.A probate has advantages and disadvantages. The probate court is accustomed to resolving disputes about the distribution of your assets in a relatively expeditious fashion and in accordance with defined rules. In addition, you are assured that the actions and accountings of your Personal Representative will be reviewed and approved by the probate court. Disadvantages of a probate include its public nature; your estate plan and the value of your assets becomes a public record. Also, because lawyer's fees and Personal Representative's commissions are based upon a statutory fee schedule computed upon the gross (not the net) value of the assets being probated, the expenses may be greater than the expenses incurred by a comparable estate managed and distributed under a living trust. Time can also be a factor; often distributions can be made pursuant to a living trust more quickly than in a probate proceeding.
WHAT IS A WILL?
A will is a traditional legal document which is effective only at your death to: • Name individuals (or charitable organizations) to receive your assets upon your death (either by outright gift or in trust) • Nominate an Personal Representative, appointed and supervised by the probate court, to manage your estate, pay debts and expenses, pay taxes, and distribute your estate in an accountable manner and in accordance with your will • Nominate the guardians of the person and estate of your minor children, to care and provide for your minor children
Assets or interests in property in your name alone at your death will be subject to your will and subject to the administration of the probate court, generally in the county where you reside at your death.
Assets or interests in property in your name alone at your death will be subject to your will and subject to the administration of the probate court, generally in the county where you reside at your death.
WHAT IS A REVOCABLE LIVING TRUST?
A revocable living trust is also commonly referred to as a revocable inter vivos trust, a grantor trust or, simply, a living trust. A living trust may be amended or revoked by the person creating it (commonly known as "trustor," "grantor," or "settlor") at any time during the trustor's lifetime, as long as the trustor is competent. A trust is a written agreement between the individual creating the trust and the person or institution named to manage the assets held in the trust (the "trustee"). In many cases, it is appropriate for you to be the initial trustee of your living trust, until management assistance is anticipated or required, at which point your trust should designate an individual, bank or trust company to act in your place. The terms of the trust become irrevocable upon the trustor's death. Because the trust contains provisions which provide for the distribution of your assets on and after your death, the trust acts as a substitute for your will, and eliminates the need for the probate of your will with respect to those assets which were held in your living trust at your death. You should execute a will even if you have a living trust. That will is usually a "pour over" will which provides for the transfer of any assets held in your name at your death to the trustee of your living trust, so that those assets may be distributed in accordance with your wishes as set forth in your living trust.
