A trust is a legal document that spells out rules as to how the property held in the trust’s name is to be managed. These written instructions can provide important legal benefits. Some of the main objectives for trusts are to reduce the estate tax liability, to protect property in your estate, and to avoid probate.
There are a variety of different Trusts you can have. The more common two types of Trusts are a Revocable Trust and an Irrevocable Trust. A revocable trust is one that may be amended, modified or revoked during the lifetime of the Grantor. An irrevocable trust is exactly the opposite as it is not able to be amended, modified or revoked.
Each persons and family needs are different. We recommend sitting down with one of our Estate Planning Attorneys for a complimentary consultation to determine which type of Trust is best for your specific situation.
Establishing a personalized estate plan is very important to ensure your loved ones are protected in the event that you become incapacitated or pass away.
Creating an estate plan is not one size fits all. Many factors determine what type of plan and what documents are right for you and your family. You should consult a qualified estate planning attorney to review your family and financial situation and best advise you regarding accomplishing your estate planning goals.
Estate planning is not limited to listing on paper whom your assets will transfer to in the event that you pass away. A properly crafted estate plan can also assist with planning for incapacity, providing for minor children, avoiding probate and understanding and planning for estate taxes.
Most times, preparing a proper estate plan today can save your family substantial expense and heartache in the future. Probate and guardianship can be very expensive and confusing. By setting up a proper estate plan, you may be able to limit or avoid the need for these legal procedures.
We can create one estate planning document for you or we can provide you with an entire estate planning package. Some common estate planning documents that may be prepared include:
A Will, most commonly known as a Last Will and Testament should provide clear details of what you want to happen with your property and other issues at the time of your death. One of the primary differences between a Last Will and Testament and a Trust is that property passing under the terms of a last will and testament requires probate to legally transfer to living beneficiaries. Wills become a matter of public record when they’re submitted to the court for probate. The terms of a living trust remain private.
A will can only govern the transfer of property owned in your sole name at the time of your death. A Will cannot address assets that pass directly to a beneficiary by contract, life insurance policies or joint tenancies with rights of survivorship.
To determine if a Will is appropriate for your needs, please seek the legal counsel of the Estate Planning Attorneys at Bell Law Firm. Our consultations are complimentary and strictly confidential.
Probate is the court supervised administration of the estate of the decedent. This is the process used to transfer the assets of the decedent to the beneficiaries. Probate is necessary if the decedent owned any assets in his or her sole name at the time of death. If an asset is jointly titled or has a beneficiary named directly on the asset, that asset is not subject to probate. A probate estate may either be “testate” or “intestate”.
What is a Probate Estate?
A probate estate is “testate” if the decedent has a valid Last Will and Testament at the time of death. The Last Will and Testament serves to direct the probate Judge as to who may serve as the personal representative of the estate and also the who are the beneficiaries. A probate estate is “intestate” if the decedent did not have a valid Last Will and Testament. In that case, the personal representative and beneficiaries are decided by the Florida statutes.
Additionally, a probate may either be a summary administration or a formal administration. A summary administration probate is an abbreviated version of the probate process. An estate may be eligible to complete a summary administration probate if the value of the estate does not exceed $75,000 or the decedent has been deceased for more than two years. If the estate does not qualify for a summary administration, a formal administration probate would be necessary.
The formal administration probate requires the court to appoint a personal representative, more commonly known as an executor. The personal representative is responsible for handling the affairs of the estate. Specifically, the personal representative must complete the following duties:
These proceeds are complex and time consuming and it is therefore advantageous to seek the assistance of a knowledgeable and experienced probate attorney.
Probate is the legal process by which a person's debts are paid and assets owned by the decedent are distributed upon death. Sometimes a will is involved, sometimes not. While the probate matter may involve oversight by a Florida court, there need not be any formal lawsuit involved; however, there are times when adversarial matters arise in probate. When these controversies culminate in formal lawsuits being filed, they will involve what is referred to as estate litigation or probate litigation.
When a deceased person’s Last Will and Testament is offered for probate, there are many requirements placed upon the probate process by Florida law. Creditors and heirs are all accorded various rights, privileges and limitations that must be strictly followed. The Will itself is available for review, and not everyone involved may be satisfied of the result when the provisions of the Will are read in conjunction with the legal mandates.
Probate litigation often involves a will contest. In Florida, probate litigation is one of the most hotly-contested areas of the law, used by surviving family members to correct an array of injustices.
Usually, Florida probate litigation is first considered by an individual when they receive a Notice of Administration. This is a formal document that alerts all interested parties of the death of the decedent, the filing of a Will for probate, and that an objection to the probate proceedings must be commenced within a certain period of time or be forever barred.
The recipient of a Notice of Administration will have a unique situation, and a dispute that may have a variety of legal bases (e.g., Lack of Mental Capacity, Undue Influence, Duress, Intentional Interference with an Expectancy, and/or Improper Signing of the Will). However, regardless of the simplicity or complexity of their claim, or any promises made to them that things will be "evened out" in the estate or someone will "take care of it," the Notice provisions will hold.
Once an individual is served with a Notice of Administration and a very limited time period (usually 20 days) passes, any promises, representations or guaranteed to settle any estate dispute or disagreement are worthless and unenforceable unless the parties have entered into an official settlement agreement (written, signed, etc.).
There are several grounds for contesting a decedent’s Last Will & Testament, including:
The standard for “testamentary capacity” is not as high as general competency. A person need only understand the nature and extent of his assets and the natural objects of his bounty (his family). Lack of capacity can be the result of the natural aging process or the result of a person being on a substantial amount of medication, e.g. heavy morphine to treat end-stage cancer. Lack of capacity litigation relies on medical records and the irrational conduct of the testator prior to executing the Will.