If you ask most people, they will probably agree that they don’t know a lot about wills, trusts, or probate? Typically these are NOT trending topics on google, in the news or discussions at the dinner table. Each of these documents is important to anyone that has assets and anyone that may inherit an asset.
To help you understand fact from fiction, we will share some of the most common misconceptions surrounding wills, trusts, and probate.
Today, estate planning is for everyone. Whether your estate is small or large, it allows you to control who receives your assets. If you don’t have a plan in place, your estate will likely need to be probated, distributing your assets in accordance with Florida state statutes. If you become incapacitated, a guardianship proceeding would also be required to appoint a person to make decisions concerning your care and assets.
As you start to work, get married, have children, there are various reasons to develop an estate plan while you are young. Your estate plan will include essential documents such as an advanced directive, authorization for release of medical information, and power of attorney, which can be extremely helpful throughout your lifetime.
As you start to have children, putting an estate plan in place is especially important. Rather than leaving these critical decisions in the hands of a judge, you’ll likely want to choose a guardian for your children as well as a person to manage your assets for their benefit.
Estate planning involves distributing assets. However, there is a lot more to it than money. It’s about relationships and taking care of those who are dependent on you if something were to happen to you. An estate plan creates peace of mind; knowing your loved ones will be taken care of if you aren’t here.
If you pass away without a valid will in place, the distribution of your estate is determined by Florida statutes. Generally, your spouse and children are the first to inherit your assets. But in rare cases, when no relatives are found, it will go to the State of Florida.
The opposite is true. A probate proceeding is required to confirm the will before property can be distributed to any beneficiaries. A will must be filed with the court and become public record, open to inspection by anyone. Probate can be a lengthy and costly court proceeding that’s likely to take more than six months to complete.
Typically, any delays you encounter in the probate process is time mandated by state laws providing creditors time for filing and notice to heirs of probate hearings. After a waiting period, the estate can be closed as soon as the personal representative has gathered assets, paid debts, and taxes. In states with an inheritance tax, they may also need to obtain a tax clearance letter.
Couples may decide not to leave the other a significant amount of assets. This typically occurs when a party owns a lot of personal assets independently. But many couples in second marriages are primarily concerned with providing for their children from the previous relationship.
Florida State law gives surviving spouses the right to refuse assets left in the deceased spouse’s will. However, in the case where the surviving spouse is left nothing or very little in the will, they have the option to take an elective share of the estate (also known as taking against the will). The state may grant the surviving spouse one-third of the estate, a year’s support, the right to live in the family home. This varies by location, of course. And in some places, the longer the couple has been married; a larger share may be claimed.
If you don’t want to leave property to each other, it’s important to discuss these plans with an attorney.
If the deceased names someone the executor, the court will appoint that person unless there’s a reason not to. Examples of this scenario might include something like a felony conviction or disability. If there isn’t a will or person named as an executor, the court will appoint someone. In most states, the surviving spouse is first in line, then the children follow.
Probate can be avoided through a carefully drafted estate plan. However, if it is necessary, a skilled attorney will be able to guide you every step of the way – ensuring no problems come up later.
We are experienced in Estate Planning and Probate Law. Give us a call today at 727-600-5858, so we can give you peace of mind.