At Gold Legacy Law, PLLC, we believe informed clients make the best decisions about their estate plans. That's why we want to break down complex terms and clarify confusing principles so that you make the right choices for your estate, too. Contact our office either online or at 305-556-5209 for a Free 15 minute consultation to get specific legal advice for your estate plan. In the meantime, here are responses to some of the most frequently asked questions we get when new clients come to our office in Miami Lakes.
Florida Estate Planning Basics
1. What is estate planning?
Estate planning is the process of deciding how your financial and personal affairs should be handled if you become incapacitated and after you die. An estate plan may include a will, revocable living trust, durable power of attorney, health care documents, beneficiary designations, and other planning tools.
2. Do I need an estate plan if I am not wealthy?
Yes. Estate planning is not only for wealthy families. If you own a home, have children, maintain bank or retirement accounts, own a business, or simply want someone you trust to make decisions if you become incapacitated, an estate plan can be important.
3. What documents should be included in a Florida estate plan?
The appropriate documents depend on your circumstances, but a comprehensive plan commonly includes a last will and testament, durable power of attorney, designation of health care surrogate, living will, and potentially a revocable living trust.
4. What happens if I die without a will in Florida?
If you die without a valid will, Florida's intestacy laws determine who inherits probate assets rather than allowing you to make that decision yourself.
5. Does a will avoid probate in Florida?
No. A will generally tells the probate court how probate assets should be distributed and can nominate a personal representative, but it does not itself avoid probate.
6. At what age should I create an estate plan?
There is no particular age at which everyone suddenly needs an estate plan. In Florida, an individual must generally be at least 18 to make a will. Adulthood, marriage, having children, purchasing a home, starting a business, or accumulating financial assets are all good reasons to begin planning.
7. How often should I update my estate plan?
I recommend reviewing your plan after significant life events and periodically even when nothing dramatic has happened. Marriage, divorce, births, deaths, substantial changes in wealth, acquiring real estate, starting or selling a business, and moving to Florida are common reasons for a review.
Wills in Florida
8. What does a Florida will do?
A will can direct the distribution of probate property, nominate a personal representative, create certain trusts, make charitable gifts, and nominate a guardian for minor children.
9. Can I write my own will in Florida?
Florida law imposes specific execution requirements on wills. A mistake involving signatures, witnesses, or other formalities can create significant problems after death. For that reason, having an estate planning attorney prepare the document can help ensure your wishes are properly documented.
10. Can I change my will after I sign it?
Yes, provided you retain the required capacity. A will may generally be replaced or amended through a properly executed codicil. Simply handwriting changes onto an already executed will is not a proper way to amend it and can create validity problems.
11. Do I have to leave my children something in my will?
Generally, you are not required simply to leave each adult child a nominal amount. However, Florida has important protections involving surviving spouses and homestead, and other circumstances can complicate disinheritance. Your documents should clearly express your intentions.
12. Can I name a guardian for my children in my will?
Yes. A Florida will can nominate the person you want to serve as guardian for your minor children.
Revocable Living Trusts
13. What is a revocable living trust?
A revocable living trust is an estate planning arrangement created during your lifetime to hold and manage assets. You can generally serve as your own trustee and retain control while you have capacity. Learn more reading our Article: What Is a Living Trust? A Guide for Florida Families
14. Does a revocable living trust avoid probate in Florida?
Assets properly transferred into a revocable living trust can generally be administered through the trust rather than probate. However, simply signing a trust does not automatically transfer your assets into it. Proper trust funding is essential.
15. Do I need both a will and a trust?
Usually, yes, when a revocable trust is the foundation of the estate plan. A pour-over will can address probate assets that were not transferred into the trust and can perform other functions the trust does not.
16. Can I change my revocable living trust?
Generally, yes. Florida law allows a settlor to amend or revoke a revocable trust, subject to the terms of the trust and applicable law.
17. Can I be the trustee of my own revocable trust?
Yes. It is very common for the person creating a revocable living trust to serve as the initial trustee and continue controlling the trust assets during life.
18. What happens to my trust if I become incapacitated?
A properly drafted trust can provide for a successor trustee to manage trust assets if you can no longer manage them yourself. Incapacity planning is one of the major benefits of a revocable living trust.
19. What assets should I put in my trust?
Depending on your plan, assets commonly transferred to a trust can include real estate, non-retirement investment accounts, certain bank accounts, business interests, and valuable personal property. The correct funding strategy depends on the asset.
20. Should my bank accounts be titled in my trust?
Some should be in many estate plans, but not necessarily every account. Savings, money market, and other non-retirement accounts may be good candidates, while some clients prefer to maintain an individual checking account for everyday expenses. Learn more here: Should Your Bank Accounts Be Titled in Your Trust?
21. Should my IRA or 401(k) be transferred into my revocable trust?
Generally, retirement accounts are not retitled into a revocable living trust during your lifetime. Instead, beneficiary designations should be coordinated carefully with your estate plan.
22. Can my Florida home be placed in my revocable living trust?
Often, yes, but Florida homestead requires special consideration. Florida's constitutional and statutory homestead protections can affect how the property may pass at death, particularly when there is a surviving spouse or minor child.
23. Is a revocable living trust protected from my creditors?
Generally, a revocable living trust is not an asset-protection device for the person who created it. Because you retain substantial control over the property, different strategies are required when creditor protection is a planning objective.
Probate and Avoiding Probate
24. What is probate in Florida?
Probate is the court-supervised process of identifying and gathering a deceased person's probate assets, addressing applicable expenses and debts, and distributing the remaining assets to beneficiaries.
25. How can I avoid probate in Florida?
Depending on your circumstances, probate may be reduced or avoided through a properly funded revocable living trust, joint ownership with survivorship rights, beneficiary designations, payable-on-death or transfer-on-death arrangements, and other planning techniques.
26. Does everything I own go through probate?
No. Whether an asset requires probate depends largely on how it is owned and whether there is an effective mechanism for transferring it at death. Trust-owned assets and certain assets with surviving joint owners or designated beneficiaries may pass outside probate.
27. Does having a beneficiary avoid probate?
Often, yes. Assets such as life insurance and retirement accounts can generally transfer directly to properly designated beneficiaries. But beneficiary designations should be reviewed as part of the entire estate plan.
Powers of Attorney and Incapacity Planning
28. What is a durable power of attorney?
A durable power of attorney allows you to authorize another person to handle specified financial and legal matters for you. It is an important part of planning for incapacity.
29. Does a power of attorney continue after death?
No. A power of attorney does not give an agent continuing authority to administer your assets after your death. At that point, authority generally shifts to the personal representative, trustee, surviving owner, beneficiary, or other appropriate person depending on the asset and estate plan.
30. What is a health care surrogate in Florida?
A designation of health care surrogate allows you to designate someone to make health care decisions for you under the circumstances provided by Florida law and your documents.
31. What is a living will?
A living will communicates your wishes concerning certain end-of-life medical treatment if the statutory circumstances arise and you cannot communicate those wishes yourself.
32. Is a living will the same thing as a last will and testament?
No. A living will concerns health care decisions during your lifetime. A last will and testament concerns your estate after your death. Despite the similar names, they serve very different purposes.
Florida Homestead, Marriage, and Family
33. Can I leave my Florida homestead to anyone I want?
Not always. Florida places significant restrictions on devising homestead when an owner is survived by a spouse or minor child. For example, Florida law generally prohibits devise of protected homestead when the owner leaves a spouse or minor child, except that it may be devised to the spouse when there is no minor child.
34. Should married couples have one joint trust or separate trusts?
Either can be appropriate. A joint trust may provide simplicity for couples with largely shared assets and common goals. Separate trusts may be useful for blended families, substantial separate property, business interests, different beneficiaries, or other individualized planning needs. To learn more about joint trusts, read here: Should Married Couples Have One Joint Trust or Separate Trusts?
35. Do married couples still need estate planning if everything is jointly owned?
Yes. Joint ownership does not address every issue. It may provide a mechanism for transferring certain property at the first spouse's death, but it does not replace incapacity planning, health care directives, planning for the surviving spouse's eventual death, guardianship nominations, or planning for children and other beneficiaries.
36. What happens to Florida homestead when a homeowner dies?
The answer depends heavily on whether there is a surviving spouse or descendants and whether the property was validly devised. In certain circumstances involving a spouse and descendants, Florida law provides a life estate to the spouse with a vested remainder to descendants, although the spouse may have an election to take a one-half tenant-in-common interest instead.
37. How should blended families approach estate planning?
Blended families should be particularly careful. A plan may need to balance providing for a surviving spouse with preserving an inheritance for children from a prior relationship. Trusts can provide considerably more control than simply leaving everything outright to the surviving spouse.
Beneficiaries, Children, and Inheritances
38. Should I name my minor child directly as a beneficiary?
Usually, leaving substantial assets outright to a minor creates practical problems because a minor cannot simply manage a large inheritance independently. A trust can allow you to select a trustee to manage the inheritance under instructions you establish.
39. Can I control when my children receive their inheritance?
Yes. A trust can provide that assets remain in trust rather than being distributed entirely at a particular age. Depending on your goals, the trustee can make distributions for purposes such as health, education, maintenance, or support while preserving the remaining assets.
40. Can I protect an inheritance for a child who is bad with money?
Trust planning can provide significantly more control than an outright inheritance. Instead of giving a beneficiary the entire inheritance immediately, assets can remain under the management of a trustee and be distributed according to standards established in the trust.
41. What happens if one of my beneficiaries dies before me?
Your estate planning documents and beneficiary designations should specify what happens. You might want that beneficiary's share to pass to their descendants, to other beneficiaries, or somewhere else entirely. This is one reason beneficiary designations should be periodically reviewed.
Estate Planning for Real Estate and Business Owners
42. What happens to my LLC when I die?
That depends on the LLC's operating agreement, ownership structure, estate plan, and how the membership interest is titled. Business owners should coordinate their operating agreements, succession plans, wills, trusts, and beneficiary arrangements rather than treating the business as an afterthought.
43. Can my trust own my LLC?
Often, a revocable living trust can own an LLC membership interest, subject to the operating agreement and other applicable restrictions. This can be an important part of business succession and probate-avoidance planning.
44. Can my revocable trust own property outside Florida?
Generally, a Florida revocable trust can own property located in other states, although the laws of the jurisdiction where real estate is located must be considered. Proper planning can sometimes help avoid an additional probate proceeding in another state.
45. Can a Florida trust own property outside the United States?
Potentially, but international property requires special planning. Foreign jurisdictions may have different inheritance, trust, ownership, tax, and registration rules. Florida counsel may need to coordinate with an attorney or tax professional in the country where the asset is located.
Maintaining Your Estate Plan
46. What happens if I create a trust but never fund it?
This is one of the most important estate planning mistakes to avoid. A trust generally controls property that has actually been transferred to it or otherwise becomes subject to it. Creating a trust without properly coordinating ownership of your assets can result in assets still requiring probate. The trust implementation requires coordinating asset ownership and actually completing appropriate transfers. To learn how to fund your trust click here: How Do You Fund Your Revocable Living Trust?
47. Should I update my estate plan after moving to Florida?
Yes. If your documents were prepared in another state, have a Florida estate planning attorney review them. Florida has its own laws involving wills, trusts, powers of attorney, probate, homestead, and spousal rights.
48. Where should I keep my original estate planning documents?
Keep original documents somewhere secure but accessible when needed. Your trusted decision-makers should know where important estate planning documents are located and how to access them. A perfectly drafted document does little good if nobody can find it.
49. Should my family know what is in my estate plan?
You do not necessarily need to disclose every financial detail. However, the people you have appointed as successor trustee, personal representative, agent, or health care surrogate should generally know that they have been selected and where necessary documents can be found.
50. Do I need an estate planning attorney in Florida?
Florida law contains specific requirements concerning wills, trusts, homestead, probate, incapacity planning, and spousal rights. Online forms may not account for your family structure, asset ownership, business interests, beneficiary designations, or Florida homestead issues.
At Gold Legacy Law, PLLC, I approach estate planning as more than preparing a set of documents. The goal is to create a coordinated plan in which your will, trust, property ownership, beneficiary designations, and incapacity documents work together.
If you live in Miami Lakes, Broward County, Miami-Dade County, or elsewhere in South Florida, our office can help you review an existing estate plan or create a plan designed around your family, assets, and goals.
Contact an Estate Planning Lawyer in Florida Today
At Gold Legacy Law, PLLC, we know you have lots of questions about estate planning. Our estate planning lawyer in Florida is here to answer your specific questions. Contact us either by using our online form or calling us directly at 305-556-5209 to schedule a Free 15 minute consultation.