Wills, Trusts, & Estate Planning

Estate planning is a process in which you develop —with the assistance of professionals like an estate planning attorney [link to HOME Page] and tax advisors— a plan for what to do with your assets after you die. But it is also much more than that. Estate planning takes into consideration your personal circumstances, goals, and desires both in the event of your death and also your incapacitation. For example, your estate plan will decide issues like: who will get your assets when you die? And, 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 at a different age when they are able to be wiser with their inheritance? Do you want to set aside money for their college? If you are in an accident and become incapacitated, what medical treatment do you want, or do not want? Who can pay your bills if you are incapacitated?

Everyone who is over 18 and who owns anything—a car, a bank account, jewelry, etc. —needs an estate plan. It does not matter whether your estate is a large or modest one—you should have a plan in place that not only describes how and to whom you want your property distributed in the event of your death, but also that plans and prepares for medical and financial decisions made on your behalf in the event of your incapacitation.

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 a tragedy happen

A Last Will and Testament (“Will”) is a legal document that dictates how you want your property distributed to your beneficiaries at your death. In Florida, to be valid, a Will must comply with certain legal formalities. It must be in writing and signed by the testator (or “maker”) at the end. The testator’s signature must be witnessed by two (2) witnesses who must sign in the presence of the testator and each other.

A Will is not an estate plan. It is, however, a very important part of a comprehensive estate plan. It is only one part of an estate plan because it does not dispose of all of a decedent’s assets. Only property that is titled in the name of the testator alone and that has no beneficiary designation can be passed on through a Will. So, while important, a Will should work in conjunction with other estate planning tools, such as a revocable living trust, to make up your estate plan.

A valid Will is necessary because it provides essential guidance to the probate court. In your Will, among other things, you can determine not only who should raise your minor children and who should get your property, but who should administer your estate. In other words, you will name the personal representative (or “executor”) for your probate estate in your Will.

As long as you have a valid Will, your wishes will be followed to the fullest extent possible.

However, if you die without having made a Will, or if your Will is invalid (in whole or in part), then Florida’s intestacy laws will determine who will inherit your property, who will raise your minor children, and who will serve as the personal representative of your estate. A Will does not become effective until you die. Nor does having a Will avoid probate. Every Will must go through the probate court and be declared valid before your assets can be distributed to your heirs.

Because probate is a time-consuming and expensive process, avoiding probate is key to any good estate plan. Having a revocable trust (also known as a “living” trust) goes far to assist with this. A revocable trust that is properly funded with assets (money, property, etc.) allows you (as the trustee of the trust) to manage your assets during your lifetime and can help manage your assets in the event of incapacitation. At the time of your death, a substitute trustee of your choice (assuming you were the original trustee) will manage all trust assets and distribute them according to your wishes and the instructions expressed in the trust instrument. A revocable living trust does not avoid taxes or protect your assets from your creditors. However, it can provide creditor protection to your beneficiaries, and it can spare your beneficiaries the time and expense of probate.  If you happen to own properties in states outside of Florida, with proper estate planning, a trust can help your family avoid having to probate those properties in each state at the time of your death.

If one of the major estate planning benefits of a living trust is avoiding probate, the other is that it avoids guardianship issues in the event of a grantor’s incapacity. Typically, the trust agreement will provide for a successor trustee to take over the administration of the trust’s assets if the original trustee (i.e., you) becomes incapacitated.

Trusts are an especially important part of any estate plan. They are a flexible estate planning tool that can be used to fit a number of circumstances. Trusts are especially important if you have children or other loved ones with disabilities or special needs. In these cases, a “Special Needs Trust” can provide for your loved one while not risking the loss of any government benefits they may be receiving.

If you fail to prepare an estate plan and you die without ever having made a Will (or revocable trust), what happens? Who will get your property? Who will be in charge of your estate? Who will look after your minor children?

The answer to these questions and others depends entirely on the probate judge and Florida’s intestacy statutes.

If you die intestate (i.e., without a Will or a without a valid Will), the probate judge has nothing to guide him or her as to your wishes concerning the disposition of your property. So, the judge will simply apply Florida’s intestacy laws to determine who will get your property, when, and how much. If probate is necessary (i.e., if you have assets that need to be transferred), the court will appoint someone as your personal representative. And, if required, the court will decide who will serve as the guardian for your children.

All of these decisions will be made by the probate court in accordance with the statute.

Not leaving such critical decisions to a complete stranger (the probate judge) and impartial laws is the main —and most essential—reason to work with an estate attorney to develop an estate plan that is customized to your family, your wishes, and your needs. Don’t leave your estate plan to chance. Protecting your family is just a phone call away.