David Howard Goldberg, P.L.

Miami Estate Planning Blog

Wills must be executed according to state laws

The complexity of making an estate plan may cause most people to put it off until it is too late. Others may try to find the quickest and cheapest way to designate where their belongings will go after they die. This may mean jotting a will on a piece of paper or downloading a document from a do-it-yourself website. However, it is important to understand Florida law when it comes to wills and other elements of estate planning.

A will can be a comprehensive part of a simple estate plan if it is properly executed. Each state has its own probate laws, so those people who have a will prior to moving to Florida would be wise to meet with an attorney to ensure the will complies with state law. For example, Florida does not recognize holographic wills, which are wills a person writes by hand and signs without witnesses. It is possible to write a valid will by hand as long as eligible witnesses sign it as well.

Do you know where to open probate proceedings?

From the moment a loved one passes, an executor has a great deal of responsibility to take on. The tasks that need handling are not always easy, and you may even experience complications when it comes to opening a probate in the correct location.

When settling a loved one's final affairs, you cannot open a probate in any location that suits you. This means that if you live in another state, you may need to travel to Florida in order to close your loved one's estate.

Understanding assets that do not need probate

For those in Florida who choose not to include trusts in their estate plans, they may assume that most of their property will go through the probate process. This legal procedure verifies the beneficiaries of an estate, values the assets and satisfies the debts of the deceased, among other things. While probate is an important part of closing an estate, it is not always necessary for some types of assets.

Any assets designated as payable on death or transfer on death will not have to go through the probate process unless the designated beneficiaries die before the owner of the accounts. Additionally, if the deceased owned property jointly with a spouse or other relative, those assets are exempt from the probate process as long as the surviving owner has rights of survivorship. In this case, full ownership of the asset transfers to the survivor. These are only a few of the ways in which assets can bypass probate directly to the beneficiaries.

Trusts, wills and other tools can help single adults plan well

It is not easy to make decisions for the future, especially if a person is young, healthy and unmarried. Single adults often overlook the need to have a strong estate plan in place because they feel that it is not necessary. However, through trusts, wills and other types of documents, they can secure their own interests and the interests of their beneficiaries in case of a serious medical situation or unexpected death.

One thing a single Florida adult can do for his or her estate planning needs is to consider establishing a revocable trust. Through this estate planning tool, a person can set aside, manage and control assets during his or her lifetime. A person can decide who is a beneficiary of the trust, such as a significant other, family members, charitable organizations and much more.  

Major life changes necesitates changes to wills and more

Life is unpredictable, and significant changes can bring about the need for a Florida reader to change his or her estate plan. When major life changes occur, it is almost always necessary to change wills and other estate planning documents to match current circumstances. Failure to adjust plans as needed can result in complications in the future. 

When a person marries, he or she may want to change an existing will to name the new spouse as the primary beneficiary. However, if there is no will already in place, marriage is a good reason to take the initial steps to put certain legal protections in place. Additionally, a person will want to change his or her will after the birth of a child. Estate planning measures can allow a parent to plan for the financial care for a child and address guardianship for minor children in case of his or her death.

Seeking guardianship is often painful, but important

Watching a loved one's health decline is difficult. The unfortunate truth is that most people reach a stage where they are unable to care for themselves without having planned for this possibility. Without an advance health care directive or power of attorney in place, family members may be unable to make important medical, financial and legal decisions for their loved one without the intervention of the Florida courts.

In such cases, many families make the difficult but critical decision to petition the court for guardianship over loved ones who are no longer able to handle their own affairs. This may be due to a medical condition such as a stroke or dementia, or it could be because of injuries from an accident. Guardians handle the legal, financial and medical decisions -- depending on the level of authority granted by the court -- for the incapacitated loved one and seek approval of the court for any major decisions.

Childless adults still need to plan for their future

Florida readers know estate planning is an important process, but there are many who choose to forgo this step altogether. There is a misconception that estate planning is only important for those who have kids or significant wealth, but that is not necessarily true. In fact, childless adults will still find it important to think about their future and put certain protections in place. 

Estate planning involves more than just outlining how the distribution of assets will work for beneficiaries. If you do not have kids, you may think that having a will and other estate planning protections in place is not necessary. In addition to deciding what you want to happen to your estate assets, you can also plan for your own health care and other things that could impact your future.

The appropriate way to handle trusts in a Florida family

Every Florida family has different estate planning needs and goals. In some situations, leaving assets through a will is sufficient, but there are other tools available that can help a person achieve his or her goals for beneficiaries and heirs long after passing. One way to do this is through trusts. This specific option allows a person to set aside and protect assets for a specific use.

Many people use trusts as a way to set aside money and assets for beneficiaries, such as grandchildren. It is not always easy to know when to inform beneficiaries of this step and how involved they should be in this process. The people who will benefit from a trust may have to wait years, such as when he or she reaches a certain age, to have access to the assets. 

Families use trusts for heirs with addictions

Few families in Florida or elsewhere in the country are untouched by the opioid epidemic. Drug overdose is now the number one cause of death for those younger than 50 in the United States. Drug addiction has no demographic, and families of all backgrounds are watching loved ones struggle with the powerful hold of heroin, prescription drugs and other substances. Because of this added complication when it comes to estate planning, many include trusts among their documents.

Parents are often caught in a difficult position when a child is an addict. They may have already spent thousands of dollars trying to help the child achieve sobriety or lost assets if the child resorted to theft to support his or her habit. Siblings of the addicted child may harbor resentment, and parents may consider disinheriting a child who may use any inheritance to continue feeding a drug habit. The risk of this decision is that it may place the estate in jeopardy if the disinherited child challenges the will.

Wills from other states may be invalid in Florida

Many people across the country find a home in Florida in their later years. The warm climate and friendly tax laws make this state a haven for retirees. However, moving from another state may mean adapting to many changes, including any estate planning decisions someone may have made prior to relocating. Each state has different rules for what makes wills and trusts valid, and those who move to a new state should be sure to learn if those laws require adjustments to their estate plans.

When someone in another state creates a will that complies with the laws of that state, Florida will likely see that will as valid even if the previous state's rules differ. However, Florida does not recognize some kinds of wills that other states accept. For example, someone who moves to Florida with a holographic, or handwritten will, should seek advice from an estate planning attorney because Florida law does not honor holographic wills.

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