Frequently Asked Questions
Q: What happens if I die without a will?
A: If you die without a will, Florida intestacy law will determine the beneficiaries of your estate. If you are married and without any children or if you are married with children only of your current marriage, your spouse will receive all of your property. If children of a different marriage exist for either you or your spouse, the surviving spouse will take one-half of the intestate estate and your children from a prior relationship will split the other half of the estate.
If you die intestate (without a will) and do not have a spouse or children, your property will go to your parents. If your parents are no longer alive, your property will go to the descendants of your parents (ie your siblings or their issue). If you do not have siblings or surviving children of your siblings (ie nieces or nephews), then the property will go to your maternal and/or paternal grandparents or descendants thereof. If they do not exist either, then their property will go to other related family members. If none of the aforementioned relationships exist, your property will pass to the state.
Q: Can I change or revoke my will?
A: You can change and revoke your will at any time. A codicil (an amendment to your will) can be used to change your will, but it must be drafted and executed in the same manner and with the same formalities as a will. Additionally, if you create a legally valid, subsequent will and execute it properly, it will automatically revoke your original will. The last valid will is the one that the court will use to distribute your assets upon your death.
Q: Who should know about my will?
A: No one except you and the lawyer should be aware of the exact contents of your will. Your attorney, executor, close friends, and/or the beneficiaries should know where to locate the will. The original should be kept in a safe place such as a fireproof box or safe deposit box.
Q: What is the difference between a will and a living will?
A: A living will and a Last Will and Testament differ in that the living will is not applicable after one’s death and only pertains to medical care if you are legally incapacitated. A will is only applicable after death and contains specific information relating to property and guardianship.
Q: What is the difference between a trust and a will?
A: A will provides the instructions for the transfer of property after one’s death. The trust removes ownership of the assets or property from the settlor but still allows for utilization by the individual. The trust is effective immediately upon creation. Also, a trust can avoid probate, whereas a will cannot. Thus, in order to avoid the probate process, a trust is recommended.
Q: Once a trust is created, what is next?
A: Assuming the trust has initially been funded correctly, besides personal property, anything you want in the trust needs to be retitled. This includes deeds to land, cars, life insurance policies, and more. Additionally, your estate-planning attorney should advise you about creating a pour-over will. The purpose of the pour-over will is to capture anything else that isn’t specifically mentioned in the trust or retitled as trust property. This could include assets you acquire after the trust but have not renamed yet, new bank accounts, gifts, inheritances, etc.
Q: What is the difference between a living trust and a living will?
A: A living trust transfers ownership of property or other assets from a person(s) to that of belonging to the trust itself. A living trust enacts during a person’s lifetime, immediately removing ownership from the individual. A living will is a legal document created to specify the type of medical treatment appropriate for an individual in situations pertaining to incapacitation, end-of-life care, and other scenarios where a person may not be able to consent to care on their own.
Q: What is the difference between a living will and a health care surrogate?
A: A health care surrogate form differs from a living will in that the surrogate authorizes a chosen individual to make health care decisions on your behalf, whereas the living will provides instructions for end-of-life choices and incapacitation care. The living will is your requests for administering or withholding specific medical treatment, whereas the health care surrogate is the appointment of an individual to make those decisions on your behalf should the circumstances require it. It is common practice for the living will and health care surrogate forms to be combined together to establish proper authorization to health care professionals.
Q: What is the difference between a living trust and a testamentary trust?
A: A living trust is enacted during a person’s lifetime, immediately removing ownership from the individual, commonly referred to as the grantor or settlor. A testamentary trust is included in a Last Will and Testament but does not come into existence until after the settlor’s death. Ownership of any assets devoted to the trust may remain within the legal possession of the grantor throughout their life. The property or assets dedicated to the trust transfer into it after the estate after the pour-over will has cleared probate.
Q: What tasks can a holder of a power of attorney perform?
A: A holder of power of attorney of another, commonly referred to as an agent, may perform only the tasks specified in the executed power of attorney document as well as any acts that reasonably fall under the scope of the defined functions. If an agent is permitted to sell a principal’s home, then they are allowed to obtain any documents, funds, and provide signatures for any means necessary to sell the home. Power of attorneys can be indefinite in length, referred to as a durable power of attorney, or be limited in time or after completion of a certain objective such as selling real property.
Q: What is probate?
A: The judicial procedure through which the testamentary document is established to be a valid will; the proving of a will to the satisfaction of the court. For more information on probate, click here.
Q: Can I avoid probate?
A: Yes. Probate can be avoided in a few different ways such as transferring assets into trusts, establishing joint tenancy, designating beneficiaries, and more. To discover which ways to avoid probate are best for you and your family, you should meet with an estate planning attorney to discuss your individual assets and needs.
Q: When should I start planning?
A: Now. You never know when it will too late and you cannot plan for death after you die. When someone fails to plan, the only person that does not suffer is the deceased or incapacitated. It is the deceased’s family who, during the grieving process, get stuck with the mess, stress, and financial burdens associated with not creating an effective estate plan.
Q: Can I draft these documents on my own?
A: When it comes to your life, your property, and your legacy, do not entertain the possibility of critical errors which could invalidate your final wishes. Meet with an experienced Orlando estate planning attorney to ensure your documents are valid, accurate, precise, and properly executed according to Florida law.
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