Q & A

Estate planning gives you the chance to ensure your wealth and assets are transferred as you wish following your death. A properly implemented estate plan can also protect your assets from creditors, reduce taxes, preserve funds for your loved ones and pets, and avoid the necessity of court- supervised guardianship.

There is no legal obligation to have an attorney draft your Will in Florida. However, it is advised that you have an estate planning attorney assist you in the process to ensure the document is valid and that there are no misinterpretations of your wishes. If your estate is complex or of high value, it would be a huge risk not to work with a licensed attorney. 

Except for the assets that'll be passed by beneficiary designation or operation of law, Florida's intestacy statutes (found in chapter 732 of the Florida Statutes) will determine the distribution of estate assets if you do not have a Will.

 Probate is the legal process for identifying, gathering, and distributing the estate of a deceased person. In Florida, this process is court-supervised and includes:

• Validating the decedent’s Last Will
• Appointing a personal representative (also known as an ‘executor’)
• Paying the decedent’s debts and expenses
• Following the Will’s instructions to distribute assets to beneficiaries

Avoiding probate in Florida is commonly accomplished through:

•  joint ownership of property (with rights of survivorship, such as tenancy by the entirety)
•  designating one or more beneficiaries (other than your “estate”) of a retirement account, life insurance policy, or annuity
•  naming one or more transfer on death beneficiaries (also known as pay on death beneficiaries) of a bank or stock account, if allowed by the institution
•  properly funding a revocable trust

A common misconception many hold is that having a valid Last Will avoids the necessity of probate- this is incorrect. As probate in Florida is the process by which a Last Will is administered. For many people, implementing a revocable trust as the basis for your estate plan may be the right choice. The benefits associated with using revocable trusts can include probate avoidance, confidentiality, and tax planning. 

Generally, no, as one Florida court case has held that the creditor protection attributable to a Florida homestead was "lost" upon transfer to a revocable trust.  Although this case may not be good law and other court cases have held to the contrary, the more cautious approach is to hold title individually for unmarried persons and as tenants by the entireties for married couples.  

Holding title in this manner will necessitate the filing of a probate upon the death of the owner(s).  However, if the homestead is the only asset subject to probate, the estate would qualify for summary administration in Florida, a simplified probate process that is significantly less expensive and time consuming than a formal probate administration.  As long as the property passes to qualified heirs (including spouses and children), it will not be subject to creditors of the estate.