Estate Planning

Wills - A legal document where an individual expresses how their property shall be distributed at death along with other instructions.  A will or trust is necessary to ensure assets are distributed according to the individuals wishes and not according to state statute.  A will does not go into effect until death and should not be confused with a living will.

Separate Writings - A separate writing is a document that can be used in conjunction with a will to make tangible gifts at death.  This document allows an individual to easily make changes regarding specific gifts without the need to amend their will.  It is limited to tangible gifts such as rings, art, furniture, etc.  Intangible gifts such as cash or stocks can not be made with a separate writing.

Joint Property with Rights of Survivorship - This is property that is owned jointly by two or more persons in which the survivor automatically inherits the property.  There are risks whenever property is owned jointly especially from the creditors of one of the joint owners.  Except with spouses, this is not a preferred method of transferring property.

Intestacy - Intestacy occurs when someone dies without a will.  In this instance, the individual's property will be distributed according to state law.  Also, if the person had minor children and did not prepare a designation of preneed guardian for his or her children, choice of a guardian will also be according to state law.

The laws of intestacy act as follows:

• If all children are from the current marriage, the surviving spouse will inherit the first $60,000 and the remainder will be divided equally between the surviving spouse and the children.

• If the deceased spouse has children from a previous marriage or relationship, the estate will be equally divided between the surviving spouse and the children.

• If there is no surviving spouse, the children will inherit the entire estate.  Adult children will inherit their share outright, while minor children's shares will be administered by their guardian.

• If the surviving spouse does not have an ownership interest in the homestead, the surviving spouse will have the right to the house during their lifetime and the children will attain it upon the death of the surviving spouse.

• If there is no surviving spouse or children, the estate goes to the decedent's parents and if there are no surviving parents to the decedent's siblings.

Out of State Documents - Wills and other estate planning documents are state specific. They are controlled by the state in which you have your primary residence. If you are new to Florida, you need to be sure that your Will is still valid and accomplishing your goals.

To understand why it's important to update your documents, begin by looking at your out of state will.  It probably begins with something like the following language: "I, Your Name, as a resident of the State of Your State...."  With this simple statement you have created a presumption that you are not a Florida resident.  If you look further into your estate planning documents, you will probably see references to state statutes.  As these are not Florida Statutes, these references will most likely be disregarded resulting in some unintended consequences.  All of this may not result in an invalid will, but it will certainly increase the cost of administering it.

Trusts - A trust is a private agreement where one person, "the trustee," holds property for the benefit of another, "the beneficiary."  Trusts are an incredibly flexible tool that can be used to avoid probate, estate taxes, and protect assets for many generations into the future.

Special Needs - Children or other persons with special needs who qualify for government benefits can find themselves disqualified for those benefits due to an inheritance or the inheritance will be taken by the government to pay for those benefits.  However, if assets are gifted to them in the proper manner, they will not affect that persons benefits and will be shielded from the government.

Ancillary Probate - Real Property is probated in the state in which it resides regardless of the residence of the owner.  Additional probates must be opened in each state in which the decedent owned real property.  These are known as ancillary probate and are in addition to the probate in the state of residence.  Ancillary probates may be avoided through the proper use of trusts.

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