FREQUENTLY ASKED QUESTIONS
Get the information you need before you make a decision.
FREQUENTLY ASKED QUESTIONS
Get the information you need before you make a decision.
TESTIMONIALS
We’re proud of the relationships we’ve built and the outcomes we’ve achieved. But don’t just take our word for it—read what our clients have to say.
TESTIMONIALS
We’re proud of the relationships we’ve built and the outcomes we’ve achieved. But don’t just take our word for it—read what our clients have to say.
What is Estate Planning?
- Last Will and Testament
- Revocable Trusts
- Irrevocable Trusts
- Durable Power of Attorney
- Designation of Health Care Surrogate
- HIPAA Releases
- Living Will
Do You Need an Estate Plan If You Don't Have a Large Estate?
When Should I Start Estate Planning?
Can I Make Changes to My Estate Plan After It's Been Created?
What is a Last Will and Testament?
A Will is a legal document that outlines your wishes for the distribution of your assets after your death, including your items of tangible personal property (jewelry, cars, etc.), and names the person in charge of that distribution (known as the Personal Representative). In addition to preparing your will, our firm will provide you with a Tangible Personal Property List that you may fill out according to your wishes later. This allows you to have all the time you need in deciding who your valuable items should go to after your passing.
A Will may also contain your wishes for the treatment of your bodily remains or burial wishes. If you have minor children, you may also designate a designated guardian for them. This document goes into effect after your passing and must be submitted to the Court to begin Probate. Probate is the process of formally administering your estate.
What is a Trust?
A Trust is a separate, private, legal entity that can hold and manage assets for your benefit during your lifetime and for the benefit of your heirs after your passing. A Trust is either a Revocable Trust or an Irrevocable Trust. Revocable trusts can act as “will substitutes,” allowing you to transfer assets to your beneficiaries after you pass away. They are often used to create other, specialized trusts after your death to provide for a loved one’s care, pay your estate taxes, or shelter your assets from your family’s creditors. Irrevocable trusts can be used to manage your family’s assets, reduce estate taxes, and protect your loved one’s eligibility for means-tested government benefits. Please see question #9 for further explanation on the differences between Revocable Trusts and Irrevocable Trusts.
Along with a copy of the Trust, you will need to sign supporting documents that accompany the Trust. These include:
- The Certificate of Trust: This is a signed affidavit containing the main terms of the Trust that financial institutions often want to see.
- Assignments to Trust: This legal document assigns property to your Trust. There are variations of this document for assigning your Tangible Personal Property, any Business entities you may own, or any items of significant value.
- Deed to a Trust: This legal document allocates your home or other Florida real property into your trust to avoid probate. We can also prepare a deed not into a trust, which allows you to name someone to inherit your home after your passing. However, this form of deed may have unintended consequences because of unsettled law.
What Is the Difference Between a Will and A Revocable Trust?
While these two documents have similar functions, there are important differences. A Will must be submitted to the Court after your passing in order to begin the Probate process of distributing your estate. In most cases where someone has a Will but no Trust, a court order must be issued to gain access to any financial accounts or safety deposit boxes that are solely in your name. On the other hand, a Trust is a living document that goes into effect once you sign and fund it. This allows the Trust to privatize the process of the distribution of your final estate. In other words, having a Trust is a great way to avoid the hassle of the Probate process. A Revocable Trust is also a great way to ensure a degree of discretion and is helpful if your family does not always get along.
What is a HIPAA (Health Insurance Portability and Accountability Act) Release?
This is a legal document that specifies who you authorize to have access to your medical records.
What are Beneficiary Designations?
Beneficiary Designations name someone as a POD (Pay-on-death) beneficiary for bank accounts and other financial plans such as a Roth IRA or a Traditional IRA, and life insurance policies.
Will My Heirs Have to Pay Estate Tax?
Probably not. There is no Florida state estate tax, and the current federal estate tax as of 2024 does not apply unless you have more than $13.61 Million of assets per person (so twice that for a married couple). However, some states levy their own estate taxes on land located in that state.
Do I Need a Trust in Order to Get the Step up In Basis and Avoid Capital Gains for My Heirs?
You are not required to have a trust in order to get the step up in basis.
How Do You Fund a Trust?
What Is the Difference Between Revocable and Irrevocable Trusts?
There are many differences between revocable and irrevocable trusts. Here are some of the common differences:
Revocable Trust: This type of trust, also known as a living trust, can be altered, amended, or revoked by the grantor (the person who creates the trust) at any time during their lifetime. As long as the grantor is alive and competent, they retain control over the trust assets and can change the terms of the trust as they see fit. The assets in a revocable trust typically pass directly to the beneficiaries (or to continuing trusts) upon the grantor’s death, avoiding probate. A revocable trust does not provide asset protection for the Grantor, but it can provide asset protection for heirs and can provide estate tax benefits, particularly for future generations.
Irrevocable Trust: Once established, an irrevocable trust generally cannot be altered, amended, or revoked. The grantor relinquishes control over the assets and the terms of the trust. Since the assets are no longer under the grantor’s control, most irrevocable trusts are not considered part of the grantor’s estate for tax purposes, which can offer significant estate tax benefits. Additionally, irrevocable trusts can provide asset protection from creditors, depending on state laws and the specific terms of the trust.
Can I Use a Trust to Protect My Assets from Lawsuits?
A revocable trust does not provide protection for you from lawsuits although if properly implemented they also do not make you more susceptible to lawsuits. Revocable trusts are a great way to set up asset protected trusts called spendthrift trusts for your loved ones after you pass away to protect their inheritance.
An irrevocable trust can protect your funds from lawsuits and provide estate tax planning benefits. However, in Florida, you generally cannot set up an irrevocable trust which you create, you control, and which benefits you (this is known as a “self-settled asset protection trust”) and have that trust protect your assets from lawsuits. Instead, you would need to set up the irrevocable trust to benefit others or have someone else set up an irrevocable trust that benefits you.
What is a Durable Power of Attorney?
A Durable Power of Attorney (DPOA) is a legal document that allows your agent or attorney-in-fact to enact broad authority for you so that they can assist you if you are alive but unable to act on your own behalf for any reason, and unable to make financial decisions for yourself. It allows the person to conduct all financial transactions for you, including banking, signing checks, filing taxes, selling your property, as well as other scenarios that may arise. It is important to note that this document goes into effect immediately, and this power lapses at the time of your passing.
Do I Need a Durable Power of Attorney for My Spouse?
YES! You do not automatically have the right to make financial decisions for your spouse simply because you are married.
What Happens if I Don’t Have a Durable Power of Attorney?
If your family needs to make financial decisions for you or want to sell your home, they generally have to seek control over you via the court system through an expensive and unpleasant guardianship proceeding.
What is a Designation of Health Care Surrogates?
A Designation of Health Care Surrogates is a legal document that grants someone (known as the surrogate) the authority to make medical decisions on your behalf if you become incapacitated and are unable to make them for yourself.
What is a Living Will (Health Care Directive)?
Not to be confused with a Last Will and Testament, a Living Will is a legal document that outlines your preferences for medical treatment and life-prolonging procedures if you become incapacitated, brain dead, terminally ill, or otherwise unable to communicate. This document helps that your healthcare decisions align with your values and gives you the freedom to refuse medical procedures such as artificial feeding, ventilators, or blood transfusions.
Do My Heirs Have to Pay Income Tax or Pay Capital Gains Tax on Their Inheritance?
Heirs generally do not have to pay income tax on their inheritance. However, if the inherited assets generate income in the future, such as dividends or interest, that income is taxable. Regarding capital gains, heirs often benefit from a “step up in basis” at the time of death. This means the value of the assets for capital gains tax purposes is adjusted to their market value at the time of the decedent’s death. If the heir sells the asset, capital gains tax would only apply to the increase in value from the time of the decedent’s death to the time of sale, rather than from the original purchase price. This often reduces the capital gains tax liability for the heir. Heirs do have to pay tax on funds withdrawn from IRAs or similar qualified plans which they inherit.
How Much Can I Give Away without Having to Pay Gift Tax?
You can give unlimited gifts to your spouse. You can give up to $18,000 per person, per year to anyone else (as of 2024). You can also pay for another person’s tuition and medical expenses in unlimited amounts as long as you pay the service provider directly. Any gifts over those amounts are considered “taxable gifts” and are required to be reported to the IRS on Form 709. You do not actually have to pay gift tax unless you give taxable gifts in excess of the estate and gift exemption of (as of 2024) $13.61 Million. Taxable gifts reduce your available exemption and therefore the amount you can leave estate tax free at death.
Estate Planning
What is Probate?
Does a Last Will and Testament Avoid Probate?
What Do the Courts Consider a Validly Executed Last Will and Testament?
What Happens to The Original Last Will and Testament Document?
Is There a Reading of The Will?
What if There Is No Last Will and Testament?
What Assets Go Through Probate?
Where Is the Probate Filed?
The probate matter is filed in the county where the decedent lived at the time of their passing.
If the decedent is not a resident of Florida but owned real property here, then the probate is filed in the county where the property is located.
What Will the Personal Representative Be Responsible For?
Looking for the decedent’s last will and testament, securing and gathering the decedent’s assets, providing information to the attorney regarding the decedent’s family members, beneficiaries, assets and creditors, opening an estate checking account after court appointment, tracking deposits and expenses of the estate, distributing the assets of the estate to the beneficiaries upon court’s instruction, and filing any final tax returns for the decedent and estate.
Will I Be Required to Attend Hearings in Florida for The Probate?
What Are Creditor Claims?
What Is Considered Exempt Property in Florida?
If a decedent passed with a surviving spouse or children, certain property of the decedent is considered exempt property and passes to the surviving spouse or children without being subject to unsecured creditor’s claims. Examples are: two (2) standard vehicles and household furnishings. Once determined as exempt property, the asset cannot be used to pay a creditor claim filed in the estate.
Exempt property also often includes homestead property, though this is subject to a different set of rules.
Is the Decedent’s Property Homestead Property?
It depends, in part, on the location of the property and the amount of land. Pursuant to Florida Constitution, Section 10, Article 4, if the property falls within the city limits and is one-half acre or less, then the property is considered homestead. For properties outside of the city limits, the allowable acreage is 160 acres for homestead exemption.
Please note: This exemption does not make exceptions for mortgages on the property. Those liens remain attached to the property and the outstanding balance is still due and payable.
What Are the Types of Probates?
Summary Administration: less than $75,000 in non-exempt assets OR the decedent passed away more than two years ago.
Formal Administration: non-exempt assets valued at over $75,000 and the decedent died less than two years ago.
Who Can Be a Personal Representative in a Probate Proceeding?
If the decedent had a last will, then the listed personal representative in the document has preference.
If there was no will, then Fla. Stat. §733.301 determines who has preference to act.
Convicted felons, minors, and incapacitated persons may not serve as a personal representative under Fla. Stat. §733.303. Also, a personal representative must have a certain relationship to the decedent if they reside outside of the State of Florida. A family member does not need to reside in Florida to qualify as a personal representative.
What Is the Cost of Probate Proceedings?
Costs will depend on the type of probate required – summary vs. formal. As only an attorney can set fees, the attorney will discuss this with you during your consultation.
How Long Does Probate Take to Complete?
It will depend on the type of probate required – summary vs. formal. Summary administrations are usually 3 – 6 months to complete and formal administrations are usually 6 – 12 months or more, depending on the circumstances. There are varying factors that determine the timeframe and usually are specific to each case and the jurisdiction where the case is filed.
What Will the Attorney Handle for The Probate?
Drafting documents, filing documents with the Court, arranging for publication of Notice to Creditors, noticing beneficiaries and creditors that estate proceedings are ongoing, applying for tax identification numbers, and guiding the personal representative through the court proceedings until the Court issues the final order of discharge.
Probate
- Last Will and Testament
- Revocable Trusts
- Irrevocable Trusts
- Durable Power of Attorney
- Designation of Health Care Surrogate
- HIPAA Releases
- Living Will
A Will is a legal document that outlines your wishes for the distribution of your assets after your death, including your items of tangible personal property (jewelry, cars, etc.), and names the person in charge of that distribution (known as the Personal Representative). In addition to preparing your will, our firm will provide you with a Tangible Personal Property List that you may fill out according to your wishes later. This allows you to have all the time you need in deciding who your valuable items should go to after your passing.
A Will may also contain your wishes for the treatment of your bodily remains or burial wishes. If you have minor children, you may also designate a designated guardian for them. This document goes into effect after your passing and must be submitted to the Court to begin Probate. Probate is the process of formally administering your estate.
A Trust is a separate, private, legal entity that can hold and manage assets for your benefit during your lifetime and for the benefit of your heirs after your passing. A Trust is either a Revocable Trust or an Irrevocable Trust. Revocable trusts can act as “will substitutes,” allowing you to transfer assets to your beneficiaries after you pass away. They are often used to create other, specialized trusts after your death to provide for a loved one’s care, pay your estate taxes, or shelter your assets from your family’s creditors. Irrevocable trusts can be used to manage your family’s assets, reduce estate taxes, and protect your loved one’s eligibility for means-tested government benefits. Please see question #9 for further explanation on the differences between Revocable Trusts and Irrevocable Trusts.
Along with a copy of the Trust, you will need to sign supporting documents that accompany the Trust. These include:
- The Certificate of Trust: This is a signed affidavit containing the main terms of the Trust that financial institutions often want to see.
- Assignments to Trust: This legal document assigns property to your Trust. There are variations of this document for assigning your Tangible Personal Property, any Business entities you may own, or any items of significant value.
- Deed to a Trust: This legal document allocates your home or other Florida real property into your trust to avoid probate. We can also prepare a deed not into a trust, which allows you to name someone to inherit your home after your passing. However, this form of deed may have unintended consequences because of unsettled law.
While these two documents have similar functions, there are important differences. A Will must be submitted to the Court after your passing in order to begin the Probate process of distributing your estate. In most cases where someone has a Will but no Trust, a court order must be issued to gain access to any financial accounts or safety deposit boxes that are solely in your name. On the other hand, a Trust is a living document that goes into effect once you sign and fund it. This allows the Trust to privatize the process of the distribution of your final estate. In other words, having a Trust is a great way to avoid the hassle of the Probate process. A Revocable Trust is also a great way to ensure a degree of discretion and is helpful if your family does not always get along.
This is a legal document that specifies who you authorize to have access to your medical records.
Beneficiary Designations name someone as a POD (Pay-on-death) beneficiary for bank accounts and other financial plans such as a Roth IRA or a Traditional IRA, and life insurance policies.
Probably not. There is no Florida state estate tax, and the current federal estate tax as of 2024 does not apply unless you have more than $13.61 Million of assets per person (so twice that for a married couple). However, some states levy their own estate taxes on land located in that state.
You are not required to have a trust in order to get the step up in basis.
There are many differences between revocable and irrevocable trusts. Here are some of the common differences:
Revocable Trust: This type of trust, also known as a living trust, can be altered, amended, or revoked by the grantor (the person who creates the trust) at any time during their lifetime. As long as the grantor is alive and competent, they retain control over the trust assets and can change the terms of the trust as they see fit. The assets in a revocable trust typically pass directly to the beneficiaries (or to continuing trusts) upon the grantor’s death, avoiding probate. A revocable trust does not provide asset protection for the Grantor, but it can provide asset protection for heirs and can provide estate tax benefits, particularly for future generations.
Irrevocable Trust: Once established, an irrevocable trust generally cannot be altered, amended, or revoked. The grantor relinquishes control over the assets and the terms of the trust. Since the assets are no longer under the grantor’s control, most irrevocable trusts are not considered part of the grantor’s estate for tax purposes, which can offer significant estate tax benefits. Additionally, irrevocable trusts can provide asset protection from creditors, depending on state laws and the specific terms of the trust.
A revocable trust does not provide protection for you from lawsuits although if properly implemented they also do not make you more susceptible to lawsuits. Revocable trusts are a great way to set up asset protected trusts called spendthrift trusts for your loved ones after you pass away to protect their inheritance.
An irrevocable trust can protect your funds from lawsuits and provide estate tax planning benefits. However, in Florida, you generally cannot set up an irrevocable trust which you create, you control, and which benefits you (this is known as a “self-settled asset protection trust”) and have that trust protect your assets from lawsuits. Instead, you would need to set up the irrevocable trust to benefit others or have someone else set up an irrevocable trust that benefits you.
A Durable Power of Attorney (DPOA) is a legal document that allows your agent or attorney-in-fact to enact broad authority for you so that they can assist you if you are alive but unable to act on your own behalf for any reason, and unable to make financial decisions for yourself. It allows the person to conduct all financial transactions for you, including banking, signing checks, filing taxes, selling your property, as well as other scenarios that may arise. It is important to note that this document goes into effect immediately, and this power lapses at the time of your passing.
YES! You do not automatically have the right to make financial decisions for your spouse simply because you are married.
If your family needs to make financial decisions for you or want to sell your home, they generally have to seek control over you via the court system through an expensive and unpleasant guardianship proceeding.
A Designation of Health Care Surrogates is a legal document that grants someone (known as the surrogate) the authority to make medical decisions on your behalf if you become incapacitated and are unable to make them for yourself.
Not to be confused with a Last Will and Testament, a Living Will is a legal document that outlines your preferences for medical treatment and life-prolonging procedures if you become incapacitated, brain dead, terminally ill, or otherwise unable to communicate. This document helps that your healthcare decisions align with your values and gives you the freedom to refuse medical procedures such as artificial feeding, ventilators, or blood transfusions.
Heirs generally do not have to pay income tax on their inheritance. However, if the inherited assets generate income in the future, such as dividends or interest, that income is taxable. Regarding capital gains, heirs often benefit from a “step up in basis” at the time of death. This means the value of the assets for capital gains tax purposes is adjusted to their market value at the time of the decedent’s death. If the heir sells the asset, capital gains tax would only apply to the increase in value from the time of the decedent’s death to the time of sale, rather than from the original purchase price. This often reduces the capital gains tax liability for the heir. Heirs do have to pay tax on funds withdrawn from IRAs or similar qualified plans which they inherit.
You can give unlimited gifts to your spouse. You can give up to $18,000 per person, per year to anyone else (as of 2024). You can also pay for another person’s tuition and medical expenses in unlimited amounts as long as you pay the service provider directly. Any gifts over those amounts are considered “taxable gifts” and are required to be reported to the IRS on Form 709. You do not actually have to pay gift tax unless you give taxable gifts in excess of the estate and gift exemption of (as of 2024) $13.61 Million. Taxable gifts reduce your available exemption and therefore the amount you can leave estate tax free at death.
Estate Planning
The probate matter is filed in the county where the decedent lived at the time of their passing.
If the decedent is not a resident of Florida but owned real property here, then the probate is filed in the county where the property is located.
Looking for the decedent’s last will and testament, securing and gathering the decedent’s assets, providing information to the attorney regarding the decedent’s family members, beneficiaries, assets and creditors, opening an estate checking account after court appointment, tracking deposits and expenses of the estate, distributing the assets of the estate to the beneficiaries upon court’s instruction, and filing any final tax returns for the decedent and estate.
If a decedent passed with a surviving spouse or children, certain property of the decedent is considered exempt property and passes to the surviving spouse or children without being subject to unsecured creditor’s claims. Examples are: two (2) standard vehicles and household furnishings. Once determined as exempt property, the asset cannot be used to pay a creditor claim filed in the estate.
Exempt property also often includes homestead property, though this is subject to a different set of rules.
It depends, in part, on the location of the property and the amount of land. Pursuant to Florida Constitution, Section 10, Article 4, if the property falls within the city limits and is one-half acre or less, then the property is considered homestead. For properties outside of the city limits, the allowable acreage is 160 acres for homestead exemption.
Please note: This exemption does not make exceptions for mortgages on the property. Those liens remain attached to the property and the outstanding balance is still due and payable.
Summary Administration: less than $75,000 in non-exempt assets OR the decedent passed away more than two years ago.
Formal Administration: non-exempt assets valued at over $75,000 and the decedent died less than two years ago.
If the decedent had a last will, then the listed personal representative in the document has preference.
If there was no will, then Fla. Stat. §733.301 determines who has preference to act.
Convicted felons, minors, and incapacitated persons may not serve as a personal representative under Fla. Stat. §733.303. Also, a personal representative must have a certain relationship to the decedent if they reside outside of the State of Florida. A family member does not need to reside in Florida to qualify as a personal representative.
Costs will depend on the type of probate required – summary vs. formal. As only an attorney can set fees, the attorney will discuss this with you during your consultation.
It will depend on the type of probate required – summary vs. formal. Summary administrations are usually 3 – 6 months to complete and formal administrations are usually 6 – 12 months or more, depending on the circumstances. There are varying factors that determine the timeframe and usually are specific to each case and the jurisdiction where the case is filed.
Drafting documents, filing documents with the Court, arranging for publication of Notice to Creditors, noticing beneficiaries and creditors that estate proceedings are ongoing, applying for tax identification numbers, and guiding the personal representative through the court proceedings until the Court issues the final order of discharge.