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“Estate law” is the body of law that governs what happens to a person’s property and obligations after death. In Florida, the estate is created by operation of law when a person dies. With very limited exceptions, any property the deceased owned at the time of his or her death passes automatically to the estate.
There are two ways that property passes through an estate to heirs and beneficiaries in Florida: in accordance with the deceased’s will, or through intestate succession. There are also methods of estate planning, such as the use of a revocable trust, which passes property outside of the estate.
A will is a legal document that provides for distribution of the deceased’s assets through the estate. The will is also used to designate a personal representative to administer the estate. In preparing a will, it is important that the creator consider issues such as which assets will be used to pay debts of the estate, how estate assets will be maintained while the estate is pending, and whether beneficiaries have the necessary resources to accept non-liquid bequests such as real estate that is subject to a mortgage lien.
With these and other considerations in play, drafting an effective will is more complicated than simply filling out a form, and is best handled in consultation with an experienced estate lawyer.
Creating a will and keeping it up to date provides important protections for your family. However, most studies conclude that fewer than half of U.S. adults have a will. When a Florida resident dies without a valid will in effect, the deceased’s property passes according to the state’s rules of intestate succession.
Many Florida residents assume that if they die without a will, the people they want to protect will automatically inherit. However, the distribution may not be what they expect or intend. In particular, intestate succession becomes complicated when the deceased leaves a surviving spouse, but one or both spouses have children with another person. When you’re planning for your family’s future, you can’t afford to rely on assumptions.
Probate is the legal process through which an estate is administered. A copy of the deceased’s will, if any, is filed with the court. This process is also known as submitting the will to probate. If there is no will, the process differs slightly, but the administration and closing out of the estate is still governed by the probate court.
The personal representative of the estate is a person appointed by the court to manage everything from inventorying estate property and paying debts of the estate, to filing estate tax returns and distributing property under the terms of the will or the law of intestate succession. When the deceased leaves a will, the will generally nominates a personal representative.
The personal representative is responsible for filing certain documents with the court, providing notice to creditors, creating an accounting, and a variety of other legal duties. Because administering an estate involves many technical requirements that are unfamiliar to the average person, it is customary for the personal representative to carry out these duties in consultation with the attorney for the estate.
“Living trust” is the term commonly used for a revocable trust that is used in place of or in conjunction with a will. The grantor creates the trust with himself or herself as grantor, trustee, and beneficiary, and places property in the trust. During the grantor’s lifetime, he or she is free to continue to use, buy, sell, and replace property as before.
The terms of the trust will also include one or more successor trustees and beneficiaries. Thus, on the grantor’s death, the successor trustee becomes the trustee, and is responsible for administering the trust on behalf of the successor beneficiaries.
Both wills and living trusts have strengths and weaknesses. With good planning and execution, either can be an effective means of transferring property. The best way to determine the approach that will help you achieve your goals and establish your priorities is to consult with an experienced estate planning lawyer.
It’s never too soon to create an estate plan. Unfortunately, many people wait until it’s too late, leaving the protection of their loved ones to chance. Give yourself and your family the peace of mind that comes with knowing they’re provided for—schedule a consultation with an experienced estate planning attorney right now. Just call 386-320-6169 or fill out the form on this page.