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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.

An elderly parents’ remarriage has implications for the entire family

Many people over the age of 55 remarry after their spouse dies or divorces them. According to the Pew Research Center, 67 percent of adults between the ages of 55 and 64 take the plunge again. At the same time, half of people older than 65 remarry. Men are more likely to remarry than women, the research shows.

But while remarriage can be a solution to loneliness, it can cause potential legal nightmares for adult children and other relatives when the husband or wife dies. A joyous wedding that likely brought two families together can divide the new spouse and the children from the first marriage when it comes to the deceased’s estate.

After actor and comedian Robin Williams died in 2014, his third wife and children from an earlier marriage battled in court over his watches, among other things. Williams had an organized estate plan, reports said, but had not included his personal items.

Estate planning attorneys and financial experts agree: If you plan to remarry, update your estate plan first. Lay out who you want to get everything – even mementos or small things you assume people wouldn’t want. Documenting every single asset is important. As long as the will shows the intent of the deceased, the courts are usually accommodating.

Before you remarry, you might consider an airtight prenuptial agreement. Most courts recognize a signed prenup even if the second or third spouse protests it after its creator has died. Most assets and finances in a remarriage shouldn’t be combined, anyway. Lay out that stipulation in your prenup, and don’t break it no matter the circumstances.

Some people choose to establish a QTIP trust as an option to protect adult children. A Qualified Terminable Interest Property trust rolls over the children’s assets into the surviving second spouse’s name so that he or she receives an inheritance. However, when he or she dies, the children from the first marriage are the beneficiaries, and will receive their share. An irrevocable living trust is also ideal because it cannot be changed once it is set up by the person before he or she dies.

There is a lot to consider when it comes to modifying your estate before your remarry. Protect yourself, your new spouse and your children. Contact an experienced estate planning attorney today.

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.

 

Top 10 misconceptions about estate planning: Part 1 of 2

There are many myths about estate planning, probably because it’s something most people don’t like to thing about that much.  We’ve taken the top 10 estate planning myths that could prove detrimental to your family and will tell you why they’re not true; here are the first 5:

Estate planning is only for the rich.  On the contrary, estate planning is not just about money.  It’s about who will make healthcare or financial decisions for you if you become incapacitated, who will take care of your minor children if you die unexpectedly, how your healthcare decisions will be made and much more.  Estate planning is for anyone who will eventually die – which means everyone.

Estate planning is only for the elderly.  Was Amy Winehouse “elderly” when she died at 28?  We all know stories of celebrities who died too young, many without a will or estate plan.  And many of their estates are still being fought over in the courts.  This happens every day to “regular” people as well.  You are never too young for estate planning.

The state gets your assets if you die without a will.  The state will not get your assets if you die without a will, but a state probate court will decide where those assets go, according to each state’s intestacy laws.  In Florida, a spouse and children take precedence; after that, assets will go to parents, siblings, grandparents, or any other living relative.  If no relation to you exists, your assets will go to the state.

Having a will avoids probate.  Having a will does not avoid probate; it provides the court with guidance on who you want to inherit your assets, but it is public record and can be contested, adding more time and expense to an already long and expensive process.  And if you own real estate in more than one state, each property may have to go through probate in the state where it is located.

You need a lawyer to draft a will.  If you have very few assets and a simple estate, you can create a will at little or no cost by using one of a number of websites that offer these services.  However, it is usually best to have an estate planning lawyer review your draft will to ensure it complies with state law and accurately reflects your wishes.

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.

Four things to avoid after a spouse dies

The loss of a spouse is one of life’s most painful and stressful events, and there are financial land mines that a newly widowed person should be aware of and avoid:

1. Making rash financial decisions. Some financial tasks – paying bills, collecting on life insurance, identifying accounts – can’t wait, but most can. Many newly widowed people suddenly find themselves the target of investment pitches because of their vulnerability. Consider getting guidance from several other financial professionals before you make any financial commitments.

2. Decisions about your home. Making decisions about your home that have long-term consequences – such as paying off the mortgage right away or putting your home up for sale – should not be made too quickly, while emotions are still raw.

3. Lending money. If your deceased spouse’s estate was a large one, you may find yourself beset by requests from relatives for loans or cash. If this happens and you find it difficult for to decline such requests, enlist the help of an accountant or estate planning attorney.

4. Investing in memory of. The investment decisions your spouse used to make might not be the best ones for you now. Don’t make the mistake of trying to honor their memory by following advice that may be harmful to your financial best interests in the long term.

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 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.

Five steps to ensure your estate plan meets your needs

Creating a comprehensive Florida estate plan is the first step in protecting assets for you and your family. But don’t stop there. Here are some tips to ensure your estate is properly organized:

If you have a safe deposit box, name a trusted co-owner of the box so your family can access it without having to get a court order. When you die, your Durable Power of Attorney dies with you, so your executor will not have immediate access to the box.

If you are in the habit of hiding valuables in your home, tell a trusted family member where those hiding places are.

If you use a name that is not your legal name on your bank account or other financial accounts – i.e., Bob Brown instead of Robert Brown – be sure that your alternate name is on your estate planning documents.

If a Florida resident passes away in another state, be sure their Florida address is noted when the death is reported. An out-of-state address on a death certificate can lead to problems at probate.

Be sure the person you have named as your executor or trustee is willing and able to serve. There are many instances when estate planning documents have not been updated, and a named representative has passed away or become disabled, requiring the court to get involved.

Although estates may be smaller after the economic downturn of the last few years, there’s now more room for flexibility, and if you play your cards right, more of your estate will end up going to your heirs rather than to the government.

So what does it mean to play your cards right?

Be specific about the distribution of your estate. Questions about your estate will inevitably lead to fights between family members. Being clear in your will or trust means fewer questions and fewer fights.

Build flexibility into your estate plan. A revocable trust as opposed to an irrevocable trust will give your executor more flexibility to manage assets when they need to be managed.

Reassess (and possibly re-title) how you hold your assets and plan to take advantage of the current exemption ($5.49 million per person, $10.98 million for couples.)

Make gifts now, rather than after you’re gone. Gifting while you are still alive can remove taxable assets from your estate, and since the estate tax exemption is so high, it’s a good time to give. You may also want to consider how much you can accomplish with a pen and checkbook, including paying tuition and medical expenses for your grandchildren with no tax consequences.

But the first thing you need to do is dust off your existing estate plan and take it to a Florida estate planning attorney for review. If you haven’t done so in awhile, it’s time to reassess, revise, and take control again.

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 free 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.

The Best Things Aging Parents Can Do For Their Children

The Best Things Aging Parents Can Do For Their ChildrenWhile much advice is being given these days to children of elderly parents on how they can help with finances and healthcare, here is some good advice for what aging parents can do for their adult children:

Multigenerational housing – About 25 percent of young adults are living with their parents these days, not always by choice. Parents should encourage children to have an exit plan that includes planning and saving for independent living some day.

Roth IRAs – Parents who put as much aside as possible in a Roth IRA are building assets for their children tax-free.

Minimize long-term care expenses – Parents need to execute advance medical directives that provide clear instructions for end-of-life care and invest in long-term care insurance so estate assets are not diminished by health care costs.

Make a will – Talk to your children about what they want and incorporate their wishes with yours in your last will and testament.

Title assets properly to avoid probate – Be sure the beneficiary forms for your investment accounts, bank accounts and retirement accounts are properly filled out so your family can avoid probate.

Keep good financial records – Don’t make your children have to reconstruct your finances after you’re gone. Keep good financial records – as well as a list of all your estate planning documents, online account information and passwords – so they have a path to follow.

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.

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.

7 Circumstances That Dictate a Change to Your Florida Will

7 Circumstances That Dictate a Change to Your Florida WillIf you have already drafted your will, congratulations! Current research shows that only a quarter of American adults have drafted a will, which means they have take responsibility for ensuring that their loves ones will not have to deal with an estate in disarray.

However, if you have drafted a will, then are circumstances when you will need to make changes to it. Here are 7 reasons to change your will:

Marriage. In Florida, if you die while married and have no children, all property will go to your spouse. If there are children, then your spouse will get half and the children the other half. If you want your spouse to inherit everything – or you have children from another marriage – you need to account for how you want your assets distributed in your will.

Children. If both you and your spouse were to die at the same time, you would need to provide instructions for how your children would be cared for. In your will, you can name a guardian for your children; in addition, establishing a trust allows you to have their assets managed until they become of age.

Middle Age. As we age, we are likely to accumulate more assets, which may include valuable art collections, antiques, automobiles, etc. Your will needs to detail who will receive these assets when you die.

Divorce. You will need to draft a new will if you get divorced.

Remarriage. You will need to draft a new will if you remarry.

Widowed. You will need to draft a new will if your spouse dies.

Relocation. Different states have different laws regarding inheritance, so you will need to have your will reviewed for any changes that need to be made if you move to another state.

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 free initial consultation at one of our conveniently located offices in Fort Pierce, Stuart, Port St. Lucie, Vero Beach, and Okeechobee.