When planning your estate, it’s important to understand some of the more common trusts and estates terms generally used by the law and your probate lawyer.
Here are 5 trusts and estates terms that you should know.
A codicil is an amendment to your Last Will and Testament (“Will”).
A codicil is not a new Will. It is used to make changes to an existing Will.
Codicils must be executed with the same formalities as a Will. The changes made by a codicil can be large or small. A codicil can be used to change or revise paragraphs or pages of a Will, or it can change just one word (or name). Executing a codicil to a Will has the effect of republishing the Will – along with the new changes.
When making your estate plan, this term is one you will become quite familiar with despite the fact that you may not want to fit into its definition.
The “decedent” in trusts and estates terms is the person who has died and whose estate is being probated or administered.
Unlike “decedent,” this is a term you probably do want to fit into.
Descendant refers to the relatives of the decedent (dead person). The descendants of a person who has died are the family members below the decedent (e.g., child or grandchild) who may inherit the decedent’s property.
The “heirs” of an estate are the people who will inherit a decedent’s property.
If a person dies without having made a Will (“intestate”), then his or her heirs are the people that the law determines will inherit his or her property. The term “heir” encompasses more people than “descendant” because it’s more than just the people “below” the decedent. Family members such as siblings, aunts, uncles, nieces, nephews, and cousins, are considered “heirs” (and so are children, grandchildren etc.)
When the decedent has a Will, it says who gets what. Being able to control your property and protect your family members is one of the main reasons why you should seek out the assistance of a Florida probate attorney and develop an estate plan.
If the decedent created a Living Trust (aka, “revocable trust”), then the terms of the trust (the trust instrument) dictate who will get the trust money and property when the decedent dies. Note that the people who benefit from a trust are called “beneficiaries,” not heirs.
This is a big one, so pay attention here.
Broadly speaking, probate refers to a court proceeding that is required to administer a person’s estate. It is the legal process of “proving” a person’s Will or admin.
This means that before a person’s property is divided up and given to anyone, the court must make sure that the decedent’s Will (if he or she had a Will) is valid. If the Will is valid, then the court will oversee the distribution of property in accordance with the Will’s terms.
What is important to understand here is that while it is critical that you have a Will, you cannot avoid “probate” just by having a Will in place. Probate is needed when the decedent dies owning assets that don’t pass some other way (such as beneficiary designations or when assets are owned in a revocable trust). When a decedent dies owning assets that must go through probate and the decedent had a Will, then the court must “probate” your Will. In other words, the court must make sure that what is presented as your Will is indeed your Will, and that it is valid and properly disposes of your property.
On the other hand, if you die without a Will, then your probate assets will still have to go through probate, the only difference is that Florida law will dictate who is your executor (aka personal representative) and who gets your assets (i.e., your heirs). This is the “probate” process that estate and probate attorneys try to help you avoid because it is often a time-consuming and expensive process.
Protecting Your Family is Just a Phone Call Away.
Don’t leave planning for your future and that of your loved ones to chance. All it takes is one phone call to the Law Offices of Samantha J. Fitzgerald to ensure that your wishes will be followed and your loved ones taken care of when you are gone. We expertly guide individuals through the complex probate process, and capably handle all aspects of the creation, administration, and settlement of trusts as well. When you work with the estate planning attorneys at the Law Offices of Samantha J. Fitzgerald, you get more than just an estate plan: you get peace of mind. Call us at 954-580-3690 or email us at: [email protected] today.