A validly executed Will, also known as a Last Will and Testament, is the fundamental building block of basic estate plans, and also serves as the failsafe planning technique for Revocable Living Trust plans. However, most prospective clients do not realize that a Will only covers separately titled assets owned by the decedent, for which there was no beneficiary. As a result, most jointly titled assets, and assets which have death beneficiary provisions, never fall under the provisions of a Will, or probate. Remember, what is subject to a Will is also subject to Probate. Probate is the court-supervised transfer of assets from the decedent’s name to his or her Will beneficiaries, after first dealing with the decedent’s and the estate’s various tax liabilities, creditors, liens, judgments, Will contests, and any pending lawsuits. If you are married or have minor children, you restricted by Florida law on how you leave certain assets, such as your home. Also, qualified retirement assets, such as 401 k plan accounts and IRAs, lose their tax deferral features if paid through a Will to your ultimate beneficiaries. A specialized IRA Inheritance Trust^TM or direct beneficiary designations are better from an income tax standpoint than leaving an IRA to your estate under your Will. This is where it really pays to have a professional carefully look at your overall situation, personal, financial, health, and legal, to prepare a Will that works best for you and your family.

What if you die without a Will? No problem, right, since the State of Florida has a Will for you, called “Intestate Succession.” Only problem though, is that the State of Florida’s plan may not be what you envisioned or really would have wanted for your family and loved ones. Why risk their future due to your lack of planning. Don’t procrastinate, plan today. Often a basic Will plan, supported by lifetime planning documents such as a Durable Power of Attorney, Healthcare Surrogate Designation, Living Will, Medical (HIPAA) Release, and Preneed Guardian Designation, will handle a single adult’s or young couple’s estate and disability planning needs.

If a Florida probate is required upon your death, it will generally take one of two forms: Formal Administration or Summary Administration. Formal Administration is what it sounds like, with more court involvement, more procedure, more chance of involvement of creditors and others, such as disgruntled family members, involved in the process. This does not have to be mission impossible. Every case is different, and our office tries to streamline the process with the local courts and clerks’ offices. When possible under the Florida Probate Code, Court Rules, and local practice, a Summary Administration is possible. This is usually for smaller estates, or for decedents who died more than two years ago. There is less creditor involvement and less formal court procedure in this process. Sometimes an Order Determining Homestead Status of Real Property is used in conjunction with a Summary Administration if the primary or only asset of the decedent was the home, and it is passing to the decedent’s heirs.

Please allow us to counsel you on what probate alternative you will most likely face under your current estate plan, and what can be done to improve your planning position in a cost effective manner. Remember, you’re an individual or family with your own unique planning needs. Don’t try to fit a square peg into a round hole. Let us develop a plan that fits you. You need an attorney and counselor, not another generic multistate form book.