In matters of Estate Planning Law, we offer Legal Representation in the areas of Revocable Trusts, Irrevocable Trusts, Pour Over Trusts, Trusts For Minors, Living Wills, Health Care Surrogate, Durable Power Of Attorney, Probate, including Simple Administration and Formal Administration, Wills, Disposition of Personal Property Without Administration, Wills With Pour-Over Provision, Wills Establishing A Trust, and Do Not Resuscitate Orders (DNRs).
A. REVOCABLE TRUSTS
The laws of most states permit the formation of a variety of Revocable Trust instruments, such as the AB “Family” Trust, QTIP Trust, Crummey Trust, and Retained Interest Trusts such as GRITS, GRATS, GRUTS, and QPRTS. These Trusts all the Trust Creator or Grantor to contribute Assets for the benefit of others to be managed by a Trustee. While it is also possible for the Creator to be either the Trustee or the Beneficiary of the Trust he or she has created, such dual capabilities will usually destroy the Trust’s ability to shelter its Assets from Creditors of the Grantor. Contact us immediately to discuss your estate planning needs and options.
B. IRREVOCABLE TRUSTS
Unlike a Revocable Trust or Revocable Living Trust, Assets transferred to an Irrevocable Trust, cannot be changed or dissolved by the Grantor once it has been created. The Grantor no longer owns the Assets. With an Irrevocable Trust, all of the property in the Trust, plus all future appreciation on the property, is out of your taxable estate. That means your ultimate estate tax liability may be less, resulting in a more efficient way to transfer your accumulated wealth to your Beneficiaries. Property transferred to your Beneficiaries through an Irrevocable Trust will also avoid Probate. As a bonus, property in an Irrevocable Trust may be protected from your Creditors. The Irrevocable Trust device is utilized for avoiding the Medicare nursing home spend-down provisions whereby if the elderly has to enter a nursing home he must first spend all his money until he does not have any money left.
C. POUR-OVER TRUSTS
A Pour-Over Trust usually contains language that explains how the Trust Assets should be distributed when the donor becomes incapacitated or passes away. Unless incapacitated, one cannot receive or distribute Assets from the Pour-Over Trust without revoking it. Unlike a Will, a Pour-Over Trust is not administered by a Court, so its contents and terms are not part of the public record. However, some Assets may go back to the Estate upon the Grantor or Trustee’s death, and require probate.
D. TRUST FOR MINORS
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E. LIVING WILL
An Advance Health Care Directive, also known as a Living Will, Personal Directive, Advance Directive, or Advance Decision, is a set of written instruments that a person gives that specify what actions should be taken for their health if they are no longer able to make decisions due to illness or incapacity.
F. HEALTH CARE SURROGATE
A Health Care Surrogate is a specific type of Power of Attorney or Health Care Proxy, where someone is appointed by the individual to make decisions on their behalf when they are incapacitated.
G. DURABLE POWER OF ATTORNEY
A Durable Power of Attorney is written authorization to represent or act on another’s behalf in private affairs, business, and all normal areas including purchasing or selling property, signing contracts, and other legal actions. This Document survives the incapacity of the Grantor, but not his death.
Probate is a court supervised process for identifying and gathering the Assets of a deceased person or Decedent, paying the Decedent’s debts, and distributing the Decedent’s Assets to his or her Beneficiaries. Probate Assets are those Assets that the Decedent owned in his or her sole name at death, or that were owned by the Decedent and one or more co-owners and lacked a provision for automatic succession of ownership at death. The two forms of Probate are Simple Administration and Formal Administration.
H1. SIMPLE ADMINISTRATION
Simple Administration or Summary Administration in Probate usually lasts only two to five months. In Summary Administration, a Personal Representative or Executor is not appointed. Summary Administration is used where the Testate Estate, meaning where the Decedent had a Will, does not direct Administration. Summary Administration is also used where the entire Probate Estate in Florida, less the value of the Exempt Property, does not exceed $75,000, or the Decedent has been dead for more than two years. The reason for the two year rule is that there is a Statute that limits claims against an Estate for two years.
H2. FORMAL ADMINISTRATION
Formal Administration in Probate usually lasts five to twelve months. In Formal Administration, a Personal Representative or Executor is officially appointed by the Court and Letters of Administration are issued by the Judge granting full authority to ask questions, collect Assets, and otherwise administer the Estate.
The steps for Formal Administration are, first the deposit of the Will with the Court. By law, a Custodian of the Florida Last Will and Testament must deposit the Will within ten days of learning of the Testator’s death. Second, there must be a Petition filed for Administration. Any interested person may file a Petition for Formal Administration of a Testate or Intestate Estate. Third, comes the Appointment of the Personal Representative. The position of Executor or Executrix is known in Florida as a Personal Representative and is appointed by Court Order. The Judge gives the Personal Representative authority to act for a Decedent by granting Letters of Administration. Fourth, a Petition is filed to open the Safe Deposit Box. If the Decedent’s Will cannot be found among the Decedent’s personal effects, it may be necessary to file a Petition to authorize access to the Decedent’s Safe Deposit Box. If the Decedent was the only signor on the Safe Deposit Box, it was sealed upon his or her death. Fifth, a Will may be admitted to Probate without further proof if it is self-proved and executed in accordance with Florida law. Sixth, the Personal Representative manages the Assets before and during distribution. This includes collecting and inventorying the Assets and determining whether to transfer property to or leave property with the persons presumptively entitled to it under the Will. Seven, the Interim Accounting must be performed. Before filing the Final Accounting, the Personal Representative has the option of filing one or more Interim Accountings with the Court. After completing Administration, the Personal Representative must make a Final Accounting of the actions undertaken in administering the Estate. This includes receipts for all transactions and a list of any dispursements, income, compensation paid, etc. Once a Final Accounting has been filed, the Court then holds a formal hearing to approve the accounting, unless all interested parties consent to waive Final Accounting. Finally, when everything required has been completed, the Personal Representative must file a Petition for Discharge of the Estate, along with a proposed plan of final distribution of Assets of the Estate. When distribution of the Estate Assets is complete, the Personal Representative then files evidence of distribution and evidence that the Creditors’ claims have been disposed. The Court will then enter an Order discharging the Personal Representative.
H3. DISPOSITION OF PERSONAL PROPERTY WITHOUT ADMINISTRATION
Disposition of Personal Property Without Administration is also known as Small Estate. This type of proceeding is used to request release of Assets of the Deceased to the person who paid the final expenses, such as funeral or medical bills, for the last sixty days. Under Section 735.301 of the Florida Statutes, the Estate must consist of personal property exempt from the claims of Creditors, and non-exempt personal property that does not exceed the amount of the funeral expenses. There cannot be any real estate in the Estate. The household furnishings must be under $10,000 and one must wait thirty days after the death of the Decedent to file for Disposition of Personal Property Without Administration.
1. SIMPLE WILL
If you die without a Will, your property will be distributed according to State Intestacy Laws. A Simple Will applies only to you and leaves a direct distribution of your Estate to your Heirs. This Will does not contain gifts to minors. It gives a description of the Assets to be distributed to your Heirs, it is witnessed by a least two adults who are not Beneficiaries and not closely related to you.
I2. WILL WITH POUR-OVER PROVISION
A Will with Pour-Over Provision directs the distribution of Assets to a Trust. A Pour-Over Will is a particular type of Will used in conjunction with a Trust. This type of Will directs the distribution of any property the Deceased still owned at the time of death. This Will manages Assets or property that were left out of a Revocable Trust.
I3. WILL ESTABLISHING A TRUST
A Will Establishing A Trust established a Trust to minors if there is not already a Revocable or Irrevocable Trust in place to handle the gifts to minors under the Will.
J. DO NOT RESUSCITATE ORDERS (DNR)
A Do Not Resuscitate Order or DNR is a legal document to respect the wishes of a patient not to undergo CPR or advanced cardiac life support (ACLS) if their heart were to stop or they were to stop breathing.