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Estate Planning & Probate

Frequently Asked Questions..... Thursday, September 02, 2010

Q:  What is the purpose of estate planning?

 

A:  Estate planning primarily allows individuals to direct the distribution of their property upon death to family, friends, and charities.  Other purposes include reducing estate tax liability (if there is an estate tax), avoiding the probate process, and either providing for or intentionally disinheriting family members. Proper estate planning is important no matter the size of your estate.

 

Q:  What is probate?

 

A:  In probate, the court distributes a deceased individual’s assets to his or her relatives and/or friends.  The process also involves paying a deceased individual’s creditors.  However, note that some of a deceased individual’s assets may not be subject to probate, such as property jointly owned with one’s spouse and life insurance. 

 

Q:  What is a 'testate' estate?

 

A:  If a Florida resident died with a valid will, he or she died “testate.”  In those circumstances, the will dictates the distribution of individually-owned assets and who will serve as personal representative.  If there is no will, there are default rules that govern probate asset distribution.  These “intestacy” laws require that  a strict and methodical order of distribution be followed; people often execute a will just to avoid them.

 

Q:  What if I do not have a Will?

 

A:  If a Florida resident died without a will, then he or she died “intestate”.  Under Florida intestacy laws, the deceased individual’s assets are generally passed to his or her immediate family.  The rules are interpreted strictly – for example, each child of a deceased individual usually receives the same percentage of probate assets.  For this reason, many people execute a will just to disinherit a  particular child.  

 

Q:  Can I avoid probate by using a living trust?

 

A:  Yes, with proper planning.  To completely avoid probate, you must go beyond merely creating a revocable living trust; all of your assets must be properly titled in the trust.  Other non-probate assets, such as property titled to “husband and wife,” may not need to be titled in the name of the trust. 

 

Q:  Is there a difference between a personal representative and a trustee?

 

A:  A personal representative is named in your will but empowered by the probate court to manage the affairs of your estate.  Your personal representative is only granted that authority when you die.  However, you designate a trustee to manage and distribute your trust property without court approval.  The trustee is empowered during your life or at your death (depending on the terms of the trust agreement) to handle the affairs of the trust.   

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