Estate Planning FAQs
Q. I am a Florida resident and wish to name my best friend as Personal Representative in my Will. She lives in NY. May I name her?
A. No, she will not be qualified per Florida Statute § 733.304, which requires Personal Representatives to either be Florida residents, related to the decedent, or a spouse of a person related to the decedent.
Q. Is it true that my assets will escheat to the state if I don’t have a Will?
A. No, not necessarily. It is very unlikely that anyone’s property will ever escheat to the State. Florida Statutes § 732.101-109, which govern when a person dies without a Will, also referred to as intestate, provides for presumed intention to give the property to those married or related to the decedent. Only when there is no surviving relative, even quite remote, would someone’s property escheat to the State. However, this process is more challenging and distribution may not be what the decedent actually intended, so it would be preferred to have a valid Will in place.
Q. What is the difference between a revocable trust and an irrevocable trust?
A. As the name implies, a revocable trust typically may be changed, amended, or revoked by the Settlor, the person creating the trust, whereas the irrevocable trust cannot be changed, amended, or revoked. There is an inherent flexibility to the revocable trust, while in some applications the irrevocable trust can provide tax advantages, asset protection, and may be needed to assist Special Needs individuals. Trusts can be developed for a variety of situations and an individual should consult an experienced Estate Planning Attorney to assist with these decisions.
Q. Does a trust limit liability?
A. Not necessarily. There are some types of trusts, typically irrevocable trusts that can be created to provide for some forms of asset protection, but not necessarily limiting liability. However, often times when gaining some of the asset protection, one will lose some access or control over those assets. Since every situations is different, the objective of limiting liability and asset protection should be thoroughly discussed with an experienced Estate Planning Attorney.
Q. What is Probate?
A. Probate is a court supervised process which distributes the decedent’s estate property to the intended beneficiaries, satisfies creditors, and formally transfers title of property. Although probate can be a long and cumbersome process, it can limit the time the estate is exposed to creditor claims, protect homestead rights, and make for a more secure and thoughtful transition of estate assets. However, probate can be avoided in most cases with appropriated prior planning with an experienced Estate Planning Attorney.
Q. If I own real estate in Florida and Illinois will I have to open probate in both states?
A. Yes, typically, a formal probate administration would be opened in the state that the decedent was domiciled and an ancillary probate administration, see Florida Statute § 734.102, would be required to distribute real property located out of state. However, probate can be avoided by proper preparation with an experienced Estate Planning Attorney that can result in assets transferred by way of a trust or by an operation of law using the appropriate deed instruments.
Q. I’m moving to become a Florida Resident, do I need new Estate Planning documents?
A. Not necessarily. You should discuss your objectives and have your old estate planning documents reviewed by an experienced Estate Planning attorney. More than likely you would want to update your documents due to the change in life situation and also take advantage of some aspects of Florida law. Some documents could be acceptable whereas some others may not be.