Estate Planning

Florida Estate Planning Law

Estate planning for Florida residents needs to be based on Florida law because all fifty states have different estate planning laws. Probate in Florida differs from probate in New York. Trusts in Florida differ from trusts in Ohio. There are certainly similarities among state probate and trust laws, but in the end, each state differs. That’s why it’s important to have a Florida lawyer assist in estate planning for Florida residents.

Estate Planning Process

Estate planning considers three things: your family, your assets, and your desires. Documents are drafted to accomplish your plan based on existing laws and various situations. These documents may include wills, trusts, powers of attorney, declarations of preneed guardian, designation of health care surrogates, and living wills. Estate planning lawyers are taught and trained to draft these documents based on their clients’ desires.

Probate Process

When a Florida resident dies, some property passes automatically to beneficiaries and some property passes through probate. Estate planning can reduce the need for probate, but when probate is needed there are several steps involved, and each step must comply with court rules, as well as state statutes. Probate lawyers are educated and trained to deal with these requirements.

In a typical probate estate, there are beneficiaries, creditors, taxing authorities, and a personal representative. Each one should have its own lawyer because there is no such thing in Florida as “the estate lawyer”. The lawyer for the personal representative represents only the personal representative and does not represent the beneficiaries or the creditors or even the “estate”.

The Florida Probate Code governs compensation of attorneys for personal representatives. Here are some things to keep in mind: (a) there is not a mandatory statutory attorney fee for estate administration; (b) the attorney fee is not required to be based on the size of the estate; (c) the percentage fee provided in the Probate Code may not be appropriate in all estate administrations; (d) the attorney fee is subject to negotiation between the personal representative and the attorney; and (e) the selection of the attorney is made at the discretion of the personal representative, who is not required to select the attorney who prepared the will.

Living Trust Process

When a Florida resident creates a living trust, it means the resident signed a trust agreement during his or her lifetime and funded it with real estate, stocks, LLCs, bonds, cash, or other assets. If properly created and funded, the assets in the living trust avoid probate when the Florida resident dies. However, probate might still be required for other assets, or to clear claims of creditors. In addition, some assets should not be transferred to a living trust. Drafting a living trust agreement is one of the documents that estate planning lawyers prepare, along with a last will and testament.

Confidential Questionnaire – Estate Planning and Probate

Most lawyers use a confidential questionnaire to obtain information from their clients for estate planning and probate. A sample questionnaire for estate planning is here and a sample questionnaire for probate is here.

Frequently Asked Questions – Estate Planning and Probate

The underlying legal concepts in Florida estate planning arose hundreds of years ago in England, long before Florida became a state. This can make it difficult to understand the documents and terminology. So, there is an FAQ page here.