Wills, Trusts & Estate Planning
What is Estate Planning?
Estate planning is the process that an individual (or family) takes to ensure that their assets are given to the people they want, at the times that they want. For example, you may want your children to receive all of your money, but only when they turn 25. It might provide the paperwork for your loved ones to make decisions on your behalf should you ever become unable to make those decisions on your own.
Most adults, regardless of age, marital status or wealth need some form of estate planning. An estate plan often includes a Last Will and Testament, a Durable Power of Attorney, a Designation of Health Care Surrogate, a Living Will, and in many cases a Revocable (or Living) Trust.
At the Law Offices of Samantha J. Fitzgerald, we focus on the creation of estate plans and all of the legal paperwork associated with it. We can ensure that your wishes are carried out when you are no longer able to carry them out on your own.
Why do I need an Estate Plan?
It is difficult to discuss, but if you die, who will get your assets? If you have minor children, who will raise them? Do you want your children to get all of your money when they turn 18, or do you want to set aside money for college, or for when they are able to be wiser with their inheritance? If you are incapacitated by an accident, what medical treatment do you want, or not want? Who can pay your bills if you are incapacitated?
An estate plan is critical to ensure that you can make these important decisions before the courts decide for you.
As an attorney that concentrates on estate planning, Samantha J. Fitzgerald can guide you through this very difficult process and make sure that you and your family are protected should tragedy happen.
What is a Last Will and Testament and a Revocable (or Living) Trust?
A last will and testament (commonly referred to as a “will”) is a document signed by the decedent, witnesses and a notary that meets the requirements of Florida law. In a will, the decedent can name the beneficiaries whom the decedent wants to receive the decedent’s probate assets, however, there are restrictions on disinheriting a spouse. The decedent also can designate a personal representative (Florida’s term for an executor) to administer the probate estate.
If a decedent has a valid will (referred to as dying “testate”), the will controls over the default provisions of Florida law. If the decedent did not have a valid will, or if the will fails in some respect, then Florida law dictates who inherits and who has preference to serve as personal representative. A will is also used to nominate guardians for your minor children.
A revocable trust is very similar to a will in the sense that it spells out who should receive your assets and who should be in charge of administering your estate (referred to as the “successor trustee”). One purpose of a properly funded revocable living trust is to avoid probate and to help manage your assets in case you are incapacitated. A revocable living trust does not avoid taxes or protect your assets from your creditors, but it can provide creditor protection to your beneficiaries and it can spare your beneficiaries the time and expense of probate.Trusts are especially important if you have children or other loved ones with disabilities or special needs. In these cases, a trust can help avoid the loss of government benefits.
What happens if there is no Will?
When someone dies without a valid will, assets will pass to the decedent’s heirs – this is called dying “intestate.” The decedent’s “heirs” are the persons who are related to the decedent and described in the Florida intestate statutes. A misconception exists that probate is necessary when a decedent dies without a will. This is simply untrue. Probate is necessary when a decedent dies owning assets that require the court to transfer its title.