Estate planning is a highly personal process, requiring close attention to the familial and financial goals of the individuals involved. Proper planning can spare one’s loved ones unnecessary emotional and financial distress.
Learn more via our Estate Planning Fundamentals.
What is Probate?
Probate is the process where a court supervises identifying and gathering a decedent’s assets, paying the decedent’s valid debts, and distributing the remaining assets to the decedent’s beneficiaries.
What is a Will?
A Will (often referred to as a Last Will and Testament) is a written document specifying the distribution of your assets after your death. Without a valid Will, Florida law (rather than your direction) will govern the distribution of your assets. A Will requires a probate action in Circuit Court to effect its administration.
What is a Trust?
Like a Will, a Trust specifies the distribution of your assets after your death. However, a Trust offers more flexibility than a Will. It can provide additional benefits such as administration without court-supervised probate. Unlike a Will, a Trust may also hold assets for any number of years to benefit beneficiaries with particular needs, such as an incapacitated spouse, minor children, or a loved one struggling with substance abuse. Revocable trusts are routinely used to bring personalized flexibility to the inheritance process, privately and outside of probate. An irrevocable trust can be an invaluable tool for estate and gift tax mitigation, charitable giving, and creditor protection.
Will funds be available to your loved ones in the event something happens to you? As a matter of law, who will your home and assets go to upon your death? It might not be who you think or would prefer. Will your loved ones be able to depend upon the assets you leave, or will they be unnecessarily diminished by debt, taxes, or poor investment?
At minimum, answering the above estate planning questions typically begins with crafting a Will and/or Trust. A Durable Power of Attorney, Designation of Health Care Surrogate, and Living Will are also necessary if you wish to designate those who will handle your financial and health care responsibilities if you are unable to prior to death. A Durable Power of Attorney is a particularly important document, as it can usually avoid the necessity for the appointment of a guardian in the event you are ever incompetent to execute documents on your own. The Florida Bar has published a helpful Consumer Pamphlet.
For advanced estate planning needs, you may look to the appointment of a Preneed Guardian, Revocable or Irrevocable Living Trusts, Asset Protection Trusts, or Special Need Trusts. Further asset preservation and tax minimizing vehicles include Marital Deduction and Credit Shelter Trusts, Spousal Lifetime Access Trusts (SLAT), Qualified Personal Residence Trusts (QPRT), Irrevocable Life Insurance Trusts (ILIT), Grantor-Retained Annuity Trusts (GRAT), or Intentionally Defective Grantor Trusts (IDGT), which permit estate and gift tax mitigation through the creation of an irrevocable trust, coupled with income tax mitigation by permitting trust income to be taxed at the lower income tax rate of the grantor.