Estate Planning / Probate
If you have ever thought about estate planning before, the terms "Will" and "Trust" may sound familiar. Both are tools designed to do the same thing - distribute your assets after death. Despite their similarities, they serve very distinct purposes. It is possible to use both to structure an estate plan to meet your needs and goals.
If you pass away without a Will in Florida, your property will distribute to your heirs according to a formula established by Florida Statutes. Unfortunately, the outcome is not always what you may have wanted and often may be a surprise leading to disappointment within your family.
What is the difference between a Will and Trust?
A will is the most basic and known way to provide instructions as to what happens with your assets after your death. It is a legal document that identifies your heirs and how to distribute your assets among them. A will may also choose a guardian for your children in the event of a parent's death and someone to to administer the estate. The administrator is known as the personal representative.
Florida law has several requirements for a will to be valid:
1. You must be 18 and of sound mind
2. It must be signed in the presence of 2 witnesses
3. The testator and witnesses must sign before a notary
A will is not final until the death of the testator. A will may be modified by the testator at any time before their death by creating a new will and destroying the previous version or having a codicil created. A codicil is a written amendment executed with the same formalities as a will. A will must be approved by the Court to be valid.
A common misperception is that a trust is for the wealthy. On the contrary, a trust can be a valuable estate planning tool for many families who want to protect their assets, minimize tax burdens for their loved ones and ensure financial future. A trust may be used to distribute property not only after death but also before death and in the event of incapacitation.
Why Use a Trust:
Trust are used to pass assets in lieu of a will. A trust allows for the immediate distribution of assets upon the death of the grantor without the need for the court to approve the process. It may also be a cost saving measure because a will may not always dispose of all your assets. Rather, a trust can also help to prevent potential conflicts when the estate is settled and in a timely manner. Additionally, a Trust can provide more privacy because it is not filed with the Court and is not subject to creditors notice.
Regardless of which estate planning documents instrument is best suited for your needs, navigating the technical and legal aspects of wills and trusts can be difficult. An estate planning attorney can walk you through the process to decide the best course of action for you and your family.
Summary Administration is a shortened form of Florida probate that is available only for estates that are “small” – meaning they do not exceed $75,000 in value – or under circumstances where the decedent has been dead for two years or more. If the decedent died having executed a valid last will and testament that specifically instructs for the estate to go through formal administration, summary administration will not be available.
May Not Be Best Choice
Although summary administration is far less expensive and time-consuming than formal administration, it might not be the best choice in some situations even if it is available. Some of these situations include:
The decedent’s estate assets are known, but there is a wrongful death lawsuit in progress that may require an appointed personal representative to prosecute the case on behalf of the decedent’s estate.
There are federal tax liens or back taxes owed.
There are several creditors who will undoubtedly require a formal accounting – which is an element of formal administration only – in order to consider negotiating the settlement of a debt.
A property is in foreclosure and a personal representative needs to discuss alternatives to this situation with the bank.
There are rent payments that need to be deposited as soon as possible.
The best way to be sure if Summary Administration is the best choice for your case is talking to an experienced Florida Probate Attorney. You must not rely on your intuition here. It is definitely necessary to have an experienced probate attorney make this determination with you in order to avoid unnecessary delays in the probate process, which could mean days, weeks, or even months of extra time for the administration to be completed.
When someone dies in Florida, his/her estate will probably need to go through probate before the assets can be distributed to the beneficiaries. As its name suggests, formal administration is the type of probate required in most cases when a Florida resident passes away. In essence, formal administration is required when the decedent’s assets are worth more than $75,000 or the decedent has been dead for less than two years.
Additionally, cases that may require formal administration include situations wherein:
One or more of the decedent’s legal heirs do not agree to court procedures
Part of the decedent’s estate is still unknown
The decedent died owing money to creditors or left unpaid bills
In case the decedent was not a resident in Florida, then the process will require an ancillary administration. Fortunately, we can also assist you. Read our guide about ancillary administration here for further help.
According to the concept of non-resident land ownership, along with the Florida Statute §734.102, ancillary administration will be necessary under the following circumstances:
If a person dies and leaves assets in the state of Florida
If a person dies and leaves liens on property located in Florida
If a person dies and leaves credits due from residents in Florida
If a person dies and leaves a business in the state of Florida
If a person dies and leaves a car, boat or mobile home titled by the state of Florida.
If this is your situation, then you need a probate lawyer to handle the ancillary administration process, in order to pass the ownership of the assets to the beneficiaries. It can look complex at first, but with our help, you will obtain results quickly and while keeping the costs at a minimum.