• Wills & Trusts
• Estate Administration & Probate
• Estate Tax Planning
• Corporate

Both the Will and trust are dispositive instruments in that they distribute your property. A Will is ineffective until the person dies and any assets subject to a Will pass through the court probate process to eventually end up in the hands of the beneficiaries. A trust can either be within a Will or stand on its own. The advantage of the trust is that you can stretch distributions out over a long period of time and it provides flexibility in estate and tax planning. Without a trust, all beneficiaries receive their share immediately unless they is a minor and then a guardianship needs to be established (another expense) for the share to be held until the beneficiary is 18 and then it gets distributed to the beneficiary. With a trust you can keep the money and property protected for the beneficiary rather than putting it directly in the beneficiary’s hands. You can accomplish the same dispositive goals by doing a revocable trust and a Will with a trust; however, you would not avoid probate unless you had a funded revocable trust.

A revocable trust is one that can be changed and terminated by the person creating it (grantor or settlor). An irrevocable trust cannot generally be changed after it is signed. With that said, there are tools available that qualified estate planning attorneys are familiar with that can effectively amend irrevocable trusts. The revocable trust is the most common trust that is used and it allows for someone to plan for death and incapacity without losing control over the assets in the trust. There is no creditor protection or tax advantage in a revocable trust while the grantor is alive. The irrevocable trust is typically used for tax planning and asset protection. The grantor has to be read to part with the assets as well as the control over them.

A Will does not avoid probate unless the decedent (person who died) dies without any assets in his or her individual name. Property that is owned with rights of survivorship, in trust, or has living beneficiaries listed will not be disposed of through a Will, so the Will may not have to be probated. However, if there are assets that do not fall into the above categories, they will need to pass through the Will, through probate, to ultimately end up in the hands of the beneficiaries.

One of the most important reasons to create a Will is to name guardians for minor children. Every state has rules as to who qualifies as a guardian. In Florida, the guardian must be either a relative or a Florida resident and the guardian cannot have a felony conviction on record. There are two types of guardians: guardian of the property and guardian of the person. The guardian of the property is in charge of any money that is inherited by the child, earned by the child, and is responsible for all costs associated with the child’s care. The guardian of the person has physical custody of the child and makes all healthcare and education decisions. One person can serve as both, but it is not necessary to choose the same person if you have a compelling reason to separate the two. The court will generally honor your nomination, but is not bound to. If you are naming someone that other family members might object to, then it is important to either put your reasons in your Will or leave a signed and dated letter explaining to your family and to the judge why you made this choice. Additionally, if you have strong feelings on a family member not serving as guardian, it is best to express that as well without saying anything that can be considered libel.

Probate is a court process by which the estate of a deceased person (the decedent) is administered so that creditors can be paid and property can be transferred to whomever will receive it. It’s not really to benefit those who inherit; it’s actually for the benefit of the decedent’s creditors. With a Will or without one, if an individual dies owning any asset in his or her name, without a living named beneficiary or without a right of survivorship co-owner, that property must pass through the probate system in order to eventually end up in someone else’s name. The status of the decedent’s debt situation at his or her death Will determine whether all the assets will go to the creditors or whether assets Will be available to distribute. Depending on where the decedent lived at his or her death, the process can take from 4 months to more than a year. It can also be costly. The attorney will get paid to handle the court process and the personal representative (also known as an executor or administrator) can also get paid. I practice in Florida where both the personal representative and the attorney can take 3% of the inventory value.

There is only one type of estate that you can do on your own without an attorney in Florida. It is known as Disposition of Personal Property Without Administration. It involves minimal assets that will cover reimbursement for funeral expenses and a few other things. In theory, you can probably also handle a Summary Administration without an attorney, however, it will be much easier to have an attorney do the work. There are nuances to probate that the clerk at the courthouse will not walk you through if you try to do it on your own because the clerk’s cannot give legal advice. If you mess it up, then you may have to hire an attorney to fix it and it can cost you more to fix it than to have had the attorney do it in the first place.