What is a revocable trust?
A revocable trust is created during a person's lifetime. The person creating the trust (called the "settlor") can add or remove property from the trust during their lifetime. When the person dies, the property will remain in the trust and be managed by a "trustee" for the "beneficiaries" named by the settlor. The settlor will decide how the property is managed and what will ultimately happen to it. Best of all, property in a trust does not have to go through probate.
What documents are in an estate plan other than a will or trust?
1. Durable power of attorney: This document will allow a person you designate to manage your financial affairs if you become disabled. This is important because if you do not have this, the State of Florida will appoint a guardian for you, which can be a difficult and expensive legal process that you do not have control over.
2. Healthcare surrogate: This document allows you to designate who you wish to make healthcare decisions on your behalf if you are incapacitated. This can prevent very disconcerting family disputes.
3. Living will (aka advance medical directive): This document allows you to inform healthcare providers about what type of medical intervention you wish to have and under what circumstances, in the event you are incapacitated.
4. Designation of pre-need guardian: This document allows you to designate who you would like to be your legal guardian, in the event a Court determines you need one. This is usually a backup in case there is an issue with the durable power of attorney or for other reasons.
What is probate?
Probate is the legal process through which the Court will distribute the assets of a person who dies either with a will or without a will. If a person dies with a valid will, the probate court will distribute the property in accordance with the will. If there is no will, the probate court in Florida will distribute the property in accordance with Florida law.
What is the problem with probate?
Probate in Florida takes a long time because court procedures are required and creditors have to receive proper notice so they can pursue debts the deceased person had. Even simple estates with no issues often take 7+ months in probate. Additionally, an attorney is often required by law and will charge a fee. There will also be court costs and costs associated with giving notice to creditors, as well as accounting fees.
Won't my spouse just be able to do everything automatically?
No! There is no automatic guardianship appointment in Florida. If you are incapacitated and have not completed a durable power of attorney agreement that is sufficient, your spouse will have to go through the long Court process of determining guardianship. At the end, the Court will decide whether your spouse, or someone else, should serve as your guardian. Nothing is automatic.
Can I avoid probate in Florida?
Yes, there are strategies to avoid or minimize probate. For example, property in a trust does not go through probate. Life insurance proceeds that go to a beneficiary other than the estate itself do not go through probate. Property in joint accounts or jointly-owned real estate with a right of survivorship do not go through probate. Also, homestead property in Florida does not go through probate. Through good planning, we can minimize the exposure to the probate process.
Can a power of attorney be used after someone dies?
No! It becomes invalid.
How much do estate plans cost in Florida?
Estate plans in Florida typically cost between $1,000 and $4,000, depending on the complexity. Plans that include trusts are usually in the higher end of the range. Very complex estates that require estate tax planning, special needs planning for disabled children, very complicated blended families, and other complexities may cost more. There are "cheap" law firms out there, but, as with most things in life, you get what you pay for.
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