A Revocable Trust Is the Best Estate Option Should You Become Ill or Incapacitated

An important comfort to getting older is knowing that your hard-earned and carefully managed assets can be passed on to your family and other beneficiaries. But what happens if age or illness prevents competent supervision of one’s estate? It’s a difficult question to grapple with, but not one without an answer.

A revocable trust offers the best of all options. A revocable trust, or living trust, is a legal document that puts your chosen assets into a trust for your benefit during your lifetime. Income is earned on the assets and trust provisions can be easily adjusted for any number of reasons.

At the time of your passing, a handpicked representative, known as a “successor trustee,” will distribute your estate according to your wishes. A revocable trust can also outline how it should be determined that you are no longer able to manage your affairs. For example, a diagnosis from your personal physician along with a separate, independent medical opinion.

Your successor trustee can then seamlessly step in and manage both your finances and property without missing a beat. This continuity is a major advantage, and cannot be as easily obtained through a standard will and testament.

A will would require your loved ones to rely on other documents such as a durable power of attorney or health care advance directive. Without advanced directives like these, your loved ones would have to seek a court-appointed guardian or conservator. This can be expensive, inconvenient and overwhelming for distraught family members. The court-appointee would also have to report back to the court regarding incurred expenses, the sale of property, and other items.

It bears repeating: Your personally chosen successor trustee will not be subject to court intervention as in the case of a will. And if you dispute a determination of incapacity, the revocable nature of a living trust allows you to retain control of your estate.

A will combined with a durable power of attorney can accomplish similar objectives regarding the transfer of estate management, but since the person giving the power of attorney owns the assets, probate administration would be required at the time of death – something many people try try to avoid.

Probate proceedings involve administration costs, including court fees and likely attorney fees, and are public record. A revocable trust circumvents probate entirely. We are ready to discuss this with you further. We encourage you to schedule a meeting with a member of our legal team to discuss the Florida estate planning that is right for you now and in the future.

Online wills allowed in Florida

There’s really no reason not to have a will, especially in the tech age. Thanks to Florida lawmakers, a person can either write a will on on piece of scratch paper or craft an online will that is still considered legal and valid in the state. It’s best to have an estate planning attorney help you out with either, though.

Let’s look at electronic wills. The Florida Electronic Wills Act allows someone to craft a will using an internet service. With the state having the largest number of seniors and retirees in the country, the act was hailed as a way to make things easier for people to get their final affairs in order.

And it does. The law requires several steps to prevent fraud, including electronic signatures of the person whose will is being created, as well as two witnesses. Two people are required to sign a paper will under state law.

Under the Florida Electronic Wills Act, the testator and witnesses must be together when they sign. Starting next year, it can be done via Skype or FaceTime.

Here’s how it reads in statute.

“Under current law, traditional wills and living wills generally must be signed by the principal to the instrument and by witnesses. The bill allows these individuals to sign, witness, and otherwise fulfill their duties while in different locations by using video conferencing and other technology. An electronic will may be stored by a “qualified custodian,” which must be capable of storing an electronic will, and must store electronic records of electronic wills, including documents related to the execution of an electronic will. The bill substantially regulates qualified custodians and includes several consumer protections for testators who choose to employ a qualified custodian.

In addition to electronic wills executed in this state, the bill grants the courts of this state jurisdiction over electronic wills that are executed by nonresident testator’s according to the Act or according to the laws of the testator’s state. During probate proceedings, the bill expressly permits the admission to probate of the electronic will or its ‘true and correct copy.’”

Keep in mind, an internet service cannot ensure your assets and wishes are protected. Even if you choose to draft an electronic will, you should seek the advice of an experienced estate planning lawyer who will make sure you are covered, legally and personally.

Our experienced and trusted estate planning attorneys have been serving Treasure Coast families for decades, and Michael Fowler is one of only nine attorneys in the state of Florida who is double board-certified in wills trusts and estates and in elder law.  Contact us for your initial consultation at one of our conveniently located offices in Fort Pierce, Stuart, Port St. Lucie, Vero Beach, and Okeechobee.

Florida probate law: An overview

Probate court is often needed to determine who should receive the assets of a person who has died, especially if he or she did not have a legal will in place. Most estate planning attorneys, as well as the Florida Bar Association, can explain the probate process to families. Here is an overview, including why probate is often necessary.

It’s a myth that only people without a will will have an estate that ends up in probate. If someone dies with a will, it isn’t valid unless it’s entered into probate court. Probate also ensures that debts are paid by the estate.

If someone dies without a will, probate is a must under Florida law to ensure a person’s assets are passed on to his or her legal heirs. The unfortunate truth about probate though, is that assets might be passed on to an heir that the person who died would not have intended, such as a friend or unmarried partner.

The law is clear. For example, if someone dies leaving behind a husband or wife and children, the surviving spouse inherits all of the probate estate. The same would happen if there were no children in the picture. If an unmarried person dies but leaves behind children, the kids inherit the entire estate. If the deceased person has neither a spouse nor children, the probate estate goes to parents or brothers and sisters.

Keep in mind, the process in Florida applies only to what are considered probate assets, which are assets that are only in the name of the person who died, or the person and a co-owner, but the transfer of ownership is in question. Real estate is a probate asset. A bank account or an investment account is not.

The best way to handle probate, whether there is a will involved or not, is to seek the help and guidance of an experienced Florida estate planning attorney, who will guide you and your family through the entire process. And, if you don’t have a will get one. That will save your family from a long, expensive and potentially damaging probate battle.

Our experienced and trusted estate planning attorneys have been serving Treasure Coast families for decades, and Michael Fowler is one of only nine attorneys in the state of Florida who is double board-certified in wills trusts and estates and in elder law.  Contact us for your initial consultation at one of our conveniently located offices in Fort Pierce, Stuart, Port St. Lucie, Vero Beach, and Okeechobee.

What happens if I die without a will?

There are so many reasons to plan your estate, no matter how young or old you are. It’s important to think ahead to ensure peace of mind for your loved ones. And yet, 55 percent of Americans don’t have a will in place by the time they die. That leaves families vulnerable to stressful and costly legal battles that often drag on for years.

Facing your own mortality isn’t pleasant. But death is inevitable for all of us; it’s just a question of when. No matter your age or financial situation, you should consider:

Who will get custody of my children if you and your spouse die? How do I want to be buried? Who gets my house and money?

It’s easy to assume that everything will go to your spouse, or, if you aren’t married, your closest living relative. But that’s not always the case.

A person who dies without a will in place has died intestate. That means that legally, you would have zero influence over who receives your assets, which go into probate. Your relatives, as a result, could be left fighting over your estate in court, a costly and time-consuming process that could permanently damage their relationships with one another.

The Florida Probate Code outlines what is likely to happen if someone dies without a will based on his or her marital status, whether community or separate property (property obtained during or prior to the marriage) is involved and whether or not children and/or other relatives are in the picture. Here’s a look at the possibilities.

  • A spouse and children: The surviving spouse inherits all of the deceased spouse’s probate estate. If the surviving spouse has children with someone who is not the deceased’s children, the estate will be split in half between the surviving spouse and the deceased’s children. still receives the entire probate estate.
  • Descendants only: The descendants inherit the entire probate estate.
  • A spouse, but no children or other relatives:  The surviving spouse inherits the probate estate.
  • No spouse or children: The probate estate will go to the deceased’s parents or brothers and sisters.

Keep things as simple as possible for your family. Hire an experienced Florida estate planning lawyer and get a will in place as soon as possible.

Our experienced and trusted estate planning attorneys have been serving Treasure Coast families for decades, and Michael Fowler is one of only nine attorneys in the state of Florida who is double board-certified in wills trusts and estates and in elder law.  Contact us for your initial consultation at one of our conveniently located offices in Fort Pierce, Stuart, Port St. Lucie, Vero Beach, and Okeechobee.

Five estate planning tips for the newly widowed

On average, women live five years longer than men, and it is currently estimated that 70 percent of baby boomer women will outlive their husbands. According to an ING Direct USA survey, almost 80 percent of boomer women say they lack the financial savvy to make the right financial planning decisions and 40 percent still leave financial planning totally up to their husbands.
Taking action now can spare you from financial panic; here are some recommendations:
Start estate planning now. Many women cannot count on having a lot of time to get their financial affairs in order after a spouse dies. Make sure all your accounts are jointly held and steps are taken to avoid probate if possible. You will want continuing access to all your assets if your spouse dies before you do.
Educate yourself. Know what you have in terms of assets and where to find those assets. Sit down now with your spouse and make a full list of all accounts, passwords and contacts and keep that list in a safe place.
Delay Social Security. If a husband was the primary earner and can hold off taking Social Security benefits until age 70, a surviving wife will qualify for a significant benefit premium.
Don’t make hasty decisions about money. Experts recommend that widows not make any major decisions – financial or otherwise – in the first six months of widowhood.
Get professional help. The help of an estate planning attorney or financial planner can be invaluable following the death of a spouse, helping you navigate the estate administration process and ensuring your financial future.
With the proper guidance, you can protect your finances and spare your loved ones the frustration of having to make costly and difficult decisions. Contact us for your initial consultation at one of our conveniently located offices in Fort Pierce, Stuart, Port St. Lucie, Vero Beach, and Okeechobee.

Valid challenges to a Florida will

In order to challenge a Florida will, it may be necessary to prove that the person making the will — the testator — lacked what is known as testamentary capacity. In other words, that the person making the will lacked the ability to understand the consequences the will at the time it was created.

Adults over the age of 18 are presumed to have testamentary capacity. Some of the ways to prove a lack of testamentary capacity include:

The testator was senile, suffering from dementia, had a substance abuse problem or was mentally ill at the time the will was drafted and signed.

The testator did not understand the value and extent of his or her property.

The testator does not have a close relationship with the beneficiaries of the will.

The testator does not understand what the provisions in the will mean.

The testator does not know the value of the property included in the will.

Additional challenges to the validity of a Florida will can include:

Undue influence, forgery or fraud. It is not uncommon for challenges to a will to charge that the will was procured by undue influence, forgery or fraud. This is especially true if the testator is elderly when the will is created.

Discovery of a newer will. If a newer will is discovered, it can trump an older will. If you are updating your will, it is important to state that it invalidates all previous wills and the old will should be destroyed.

Witnesses. Florida law requires that a will be signed in the presence of two independent witnesses who are not named in the will as beneficiaries. If a will lacks the necessary number of witnesses, or is witnessed by someone who stands to benefit from the provisions in the will, it may be found invalid.

At The Estate, Trust and Elder Law Firm, P.L. we help our Treasure Coast clients develop and implement comprehensive estate planning strategies personally tailored to their unique situation, needs, and goals. Contact us for your initial consultation at one of our conveniently located offices in Fort Pierce, Stuart, Port St. Lucie, Vero Beach, and Okeechobee.

Do I need a will?

When your life changes, your will needs to change as well. You can do this by either modifying your will with a codicil, or by creating a new will. To eliminate any possibilities for confusion, you should consider drawing a new will when you experience a big life change such as:

Divorce – In most states, a divorce decree will nullify any gift made to a former spouse; however, to ensure your assets go where you want them to go, you should draw up a new will following a divorce.

Marriage – No matter if it’s your first marriage or your fourth, you and your new spouse should both create a new will. If there are now stepchildren you want added as beneficiaries, you will need to provide for them by name in your will, unless they have been adopted, in which case they will be considered your legal children.

Birth – Your will should include the establishment of a guardian for any minor children.

Death – If you have named someone as a beneficiary in your will and they before you do, a new will should be created so the assets can be redistributed.

Reviewing your will when life changes – such as a birth, a death, or divorce – will help ensure your will is valid and does what you intend for it to do. Here are some other things you can do to ensure your Florida will is valid:

Make sure it can be found. A common mistake many people make is to lock away their will in a bank safety deposit box, not realizing that it will require a court order to open that box and your loved ones will be without the necessary documents to open probate.

Be careful about who you choose as executor. Naturally you want to name someone who is responsible, but be sure they actually want the job before you name them. In addition, name a second person to serve in case your first choice is unavailable.

Avoid contradictions in estate planning documents. You want to be sure your will doesn’t contradict the choices you have already made for those listed on beneficiary forms for your life insurance policy, retirement accounts, etc.

Name a back-up guardian. One of the most important functions of a will is naming a guardian for minor children. But what if you only named one person, and that person couldn’t take on the responsibility? Naming a second choice for guardian will bypass this potential problem.

Be specific. If you want to disinherit someone, you must state that specifically in your will. In addition, if you have gotten divorced and remarried but have children from your first marriage, you will want to make provisions for both your current spouse and your children from the first marriage. Not doing so could leave your children unintentionally disinherited.

Seek professional guidance. While there are many online options for creating a will, these are not tailored to your specific needs. Seek professional guidance from a qualified estate planning attorney so you can avoid common mistakes that could invalidate your will.

Our experienced and trusted estate planning attorneys have been serving Treasure Coast families for decades, and Michael Fowler is one of only nine attorneys in the state of Florida who is double board-certified in wills trusts and estates and in elder law. Contact us for your initial consultation at one of our conveniently located offices in Fort Pierce, Stuart, Port St. Lucie, Vero Beach, and Okeechobee.

Why It’s Necessary to Review Your Will or Trust

Why It’s Necessary to Review Your Will or TrustJust like a sailor must make corrections to avoid being blown off course, it is necessary to periodically review your estate planning documents — including your will or trust — to determine if any course corrections should be made.

Conducting a proper review of your documents will help identify the potential need to update because of:

Changes in family circumstances – births, deaths, marriages or divorces that may affect the people named in your documents such as beneficiaries, executors, decision-makers, etc.

Changes in law – these include changes to federal and state tax laws or regulations that open up new planning strategies.

Changes in assets – Has your net worth increased or decreased? This may mean that your current plan is no longer a good fit for what you want or need.

Funding of assets – it is common to discover that someone has not properly completed the transfer of assets into their trust, or have beneficiary designations that are inconsistent with the distribution language in their estate plan.

Inevitable changes in your life and/or the law dictate that a thorough review of your planning documents be conducted regularly to ensure that they still comply with your original intent.

A comprehensive review of your estate plan is intended to uncover those “gaps” that might not otherwise be discovered until it is too late. When that happens, it will be your family will have to deal with the unfortunate consequences.

At The Estate, Trust and Elder Law Firm, P.L. we help our Treasure Coast clients develop and implement comprehensive estate planning strategies personally tailored to their unique situation, needs, and goals.   Contact us for your initial consultation at one of our conveniently located offices in Fort Pierce, Stuart, Port St. Lucie, Vero Beach, and Okeechobee.

Do All Florida Wills Have to Go Through Probate?

Do All Florida Wills Have to Go Through Probate?Most people think that if somebody dies with a will, getting their inheritance will be fairly simple and easy. However, if a person dies in Florida with or without a valid will, the estate still may be required to go through probate depending upon how particular assets are titled.

Probate is the court-supervised method by which the will is validated, heirs are determined, debts are paid and assets are distributed. If no will exists – also known as dying “intestate” – probate is necessary for a judge to determine who will receive the deceased person’s assets under Florida Law unless they are titled in a probate avoidance format.

While Florida law clearly states that a surviving spouse with no children will be the sole beneficiary if no will exists, things can get very complicated after that. Even if there is a will, the court still needs to ensure that the will is valid and that there is no conflict between the will and Florida law, especially when homestead property is involved.

Either way, you will need the assistance of a skilled attorney to help navigate this process since the State of Florida does not allow do-it-yourself probate.

When you are already grieving the death of a family member, the complicated demands of the Florida probate process can be overwhelming. This is why the easiest course of action for your family is to consult with a probate attorney, who can help you navigate this process so you don’t have to go it alone.

The Estate, Trust & Elder Law Firm, P.L., provides attorney services ranging from estate planning for young families to advanced and crisis long-term care for seniors. Contact us for your initial consultation at one of our conveniently located offices in Fort Pierce, Stuart, Port St. Lucie, Vero Beach, and Okeechobee.

What NOT to Include in Your Florida Will

What NOT to Include in Your Florida WillA Florida will is a vital document for distributing your assets to loved ones – but there are certain things that should not be included in your will, including:

Property held in joint tenancy – the right of survivorship passes to the joint tenant by law and cannot be changed via a will.

Property held in a living trust – if you have established a living trust and deeded property to it, that property cannot be willed to someone else.

Designated beneficiary accounts – your retirement plans, life insurance, and other accounts like payable-on-death bank accounts that already have beneficiary designations cannot be willed to someone else. The assets from these accounts pass to those you have named on the beneficiary designation forms.

Conditional gifts – if you wish to leave a gift of assets that is contingent on the beneficiary performing a duty or act (like finishing college or getting married), not every condition is legal. You cannot ask someone to marry, divorce or change his or her religion in order to receive an inheritance via your will.

Funeral instructions – usually a will is reviewed after the funeral, so leaving instructions for your funeral arrangements in your will is not a good idea.   Instead, leave a letter of instruction or discuss your wishes with loved ones.

Gifts to pets – while many of us consider our pets to be family, under the law pets do not have the ability to own property. Set up a Florida pet trust to ensure your pet is cared for after you are gone.

Our experienced and trusted estate planning attorneys have been serving Treasure Coast families for decades, and Michael Fowler is one of only four Treasure Coast attorneys who is Board Certified by the Florida Bar in Elder Law. Contact us for your free initial consultation at one of our conveniently located offices in Fort Pierce, Stuart, Port St. Lucie, Vero Beach, and Okeechobee.