No, a testamentary trust is usually created by a person’s will and has assets transferred to it during the probate process. These assets are then distributed by the trustee according to the terms of the trust. One advantage to a testamentary trust is that its administration would be carefully overseen by the courts. However, this type of trust does not avoid the process of probate which can be costly in terms of time and money. For advice on what kind of estate planning documents would best serve your individual needs, contact one of our experienced estate planning attorneys at (941) 906-1231.
Florida law does not allow for a total disinheritance of a surviving spouse or surviving minor children. These family members have the right to claim an “elective share” of assets which usually amounts to 30% of certain probate and non-probate assets. Surviving spouses who are trying to decide between inheriting under the terms of a will or taking an elective share should consult an attorney to explore the implications of the two options. Prenuptial agreements can impact the ability of a spouse to take the elective share.
If you have questions about the probate process, contact one of our probate attorneys at (941) 906-1231.
A children’s trust or a standby trust for minors can be set up to help manage the inheritance of a beneficiary who is underage. If a beneficiary is not 18 or another minimum age chosen by the benefactor, a children’s trust can be used to designate a trustee who will manage the minor’s assets until a certain age. The trust creator can choose at what age the child receives part of all of the inheritance and under what circumstances and for what purposes the child will access to the funds in the trust.
If you need advice about planning for the young people in your life, contact one of our experienced estate planning attorneys at (941) 906-1231.
Letters of Administration are issued by probate judges and name a personal representative to act on behalf of an estate during probate proceedings. Many times, these letters are requested by banks to ensure they are issuing funds to the correct people after an account holder’s death. These letters can take time to receive through the courts so it is essential to consult a probate attorney to review the titling of the decedent’s assets and determine if Letters of Administration and a formal probate administration is necessary. For advice from an experienced probate attorney, contact our office at (941) 906-1231.
Financial accounts can be set up to designate a person to whom the funds are payable on death, meaning the named beneficiary can claim the funds without going through the probate process. If you are the named beneficiary of a payable on death account you should be able to receive the funds from the account after providing documentation of the decedent’s death and your identity.
When an account is designated as payable on death, the named beneficiary has no right to access the money until the death of the account holder. It is important to remember that these accounts should be coordinated with other estate planning documents to prevent confusion and disagreement during the settling of an estate. To set up estate planning documents or for advice on how to best ensure your assets will be distributed as you want after your death, contact one of our experienced estate planning attorneys at (941) 906-1231.
In Florida, married couples can hold jointly owned property as tenants by the entirety which can help couples to avoid probate and protect one spouse from creditors of the other. When someone dies and they and their spouse owned a property as tenants by the entirety, the property is automatically passed to the surviving spouse and the creditors of the deceased spouse cannot reach any property which the couple owned as tenants by the entirety.
Any property, including bank accounts, can be held as tenancy by the entirety. If a married couple owns a bank account jointly, it is presumed under Florida law that this account is held as tenancy by the entirety.
For more information about estate planning and probate avoidance, contact one of our experienced estate planning attorneys at (941) 906-1231.
Becoming a Florida Resident can lead to significant benefits in access to both beautiful beaches and tax benefits. One of the most important steps to becoming a resident is submitting a Declaration of Domicile. In Sarasota County you will need to fill out the Declaration of Domicile and bring it to the Recording Department on the first floor of 2000 Main Street, Sarasota, FL 34247. You will also need to pay a $10.00 fee for recording the Declaration. A link to the Declaration of Residency form can be found below:
http://sarasotaclerk.com/FileLib/domicile.pdf
In addition to submitting the form above, consider taking the following steps to declare Florida as your residency:
- Change your voter registration to Florida and vote here
- Surrender your out-of-state driver’s license and obtain a Florida drivers license (or a Florida ID card if you do not drive)
- Register your cars in Florida
- If you belong to any out-of-state private clubs, change your status from resident to non-resident
- File your federal income tax using your Florida address
- If you have taxable assets that require it, file a Florida Intangible Personal Property Tax Return
- Make primary banking accounts in Florida
- Update estate planning documents using Florida documents and laws and declare yourself to be domiciled and a resident of Florida
- Document that the majority of your time is spent in Florida through receipts or other relevant documentation. Report yourself as a Florida resident and use your Florida address when traveling and staying in hotels
For help updating your estate planning documents to reflect your Florida residency, contact one of our experienced estate planning attorneys at (941) 906-1231.
Being married does not give your spouse the ability to make financial decisions for you, such as accessing your IRA. In order to grant your spouse or another trusted individual those rights, you must set up a durable power of attorney (DPOA). A DPOA is important as it can give an individual of your choice the right to handle your financial affairs, plan for Medicaid, etc. While the DPOA becomes effective the moment it is executed, the DPOA is especially useful in the event that you become unable to make such decisions yourself. The specific powers which you grant to your power of attorney can be designated in the document you set up. They can be extremely specific, such as granting a person the right to sell your home, or broad, such as granting a person the right to conduct banking transactions.
If you do not have a durable power of attorney set up or would like an old DPOA reviewed and updated, contact our office at (941) 906-1231 to meet with one of our estate planning attorneys.
When a minor child inherits assets in Florida, their parent or guardian does not have the authority to settle, collect, receive, or manage real or personal property if the total assets exceed $15,000. If the assets inherited exceed this amount, the court can appoint a Guardian Ad Litem who is responsible for managing the probate process and inheritance for the child. This guardianship can cost time and money as the guardian must petition the court each year for distributions of assets.
To avoid the cost of an unknown guardian helping a minor to manage inherited assets, assets can be passed for the benefit of a minor using a trust. A known trustee can then be designated to distribute assets to the minor child or for the minor’s benefit in accordance with the trust provisions. For example, it could be specified that trust assets are to be used to fund the child’s education.
For estate planning services or to set up a trust to ensure your assets are passed to beneficiaries in the way that you desire, call one of our experienced estate planning attorneys at (941) 906-1231.
Per stirpes is a Latin phrase used in wills to mean that an asset will be passed to the heirs of designated beneficiaries if the beneficiaries themselves die. If someone plans to leave assets to a friend but that friend dies before they do, the asset would be passed to the friend’s heirs if a per stirpes expression appears in the will.
