Gainesville, Florida Estate Planning Law Firm

Estate Planning

Estate planning is the process of creating a strategy to transfer your assets when you pass away. Your estate plan will lay out who you want to receive the assets, what they should inherit, and how that inheritance should be managed. It can also designate who will care for your young children or pets and describe how you want to be treated in your final days. Depending on your circumstances, your estate plan could include several documents:

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Yes, estate planning is important for everyone, regardless of the size of your estate. Florida has laws that apply whenever a person dies without a Will or Trust. However, those laws may not properly protect you, your assets, or loved ones. Even if you have modest assets, a well-structured plan can help ensure your wishes are followed, simplify the process for your loved ones and protect your assets after your passing. An estate plan is even more important if you have specific wishes regarding how you are treated in your final illness or need to provide for a loved one’s care after your passing.

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It is almost never too early to start estate planning, but it can be too late. You can only create an estate plan while you are alive and competent -- meaning you have the required mental capacity. When a terminal illness or degenerative condition affects your ability to think, remember, or communicate your wishes, it could also interfere with your ability to control what happens to your assets after you pass away or designate who makes decisions for you in the event in incapacity. You shouldn’t wait to see if you will be diagnosed with these conditions. Start your estate planning early so you know your wishes will be protected.

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Yes, you can update and modify your estate plan as circumstances change. It's recommended to review your plan periodically, especially after significant life events like marriages, births, divorces, or changes in financial status. We check in with our estate planning clients every three years.

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A Will is a legal document that outlines your wishes for the distribution of your assets after your death, including your items of tangible personal property (jewelry, cars, etc.), and names the person in charge of that distribution (known as the Personal Representative). In addition to preparing your will, our firm will provide you with a Tangible Personal Property List that you may fill out according to your wishes later. This allows you to have all the time you need in deciding who your valuable items should go to after your passing.

A Will may also contain your wishes for the treatment of your bodily remains or burial wishes. If you have minor children, you may also designate a designated guardian for them. This document goes into effect after your passing and must be submitted to the Court to begin Probate. Probate is the process of formally administering your estate.

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A Trust is a separate, private, legal entity that can hold and manage assets for your benefit during your lifetime and for the benefit of your heirs after your passing. A Trust is either a Revocable Trust or an Irrevocable Trust. Revocable trusts can act as “will substitutes,” allowing you to transfer assets to your beneficiaries after you pass away. They are often used to create other, specialized trusts after your death to provide for a loved one’s care, pay your estate taxes, or shelter your assets from your family’s creditors. Irrevocable trusts can be used to manage your family’s assets, reduce estate taxes, and protect your loved one’s eligibility for means-tested government benefits. Please see question #9 for further explanation on the differences between Revocable Trusts and Irrevocable Trusts.

Along with a copy of the Trust, you will need to sign supporting documents that accompany the Trust. These include:

  • The Certificate of Trust: This is a signed affidavit containing the main terms of the Trust that financial institutions often want to see.
  • Assignments to Trust: This legal document assigns property to your Trust. There are variations of this document for assigning your Tangible Personal Property, any Business entities you may own, or any items of significant value.
  • Deed to a Trust: This legal document allocates your home into your trust to avoid probate. We can also prepare a deed not into a trust, which allows you to name someone to inherit your home after your passing. However, this form of deed may have unintended consequences because of unsettled law.
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While these two documents have similar functions, there are important differences. A Will must be submitted to the Court after your passing in order to begin the Probate process of distributing your estate. In most cases where someone has a Will but no Trust, a court order must be issued to gain access to any financial accounts or safety deposit boxes that are solely in your name. On the other hand, a Trust is a living document that goes into effect once you sign and fund it. This allows the Trust to privatize the process of the distribution of your final estate. In other words, having a Trust is a great way to avoid the hassle of the Probate process. A Revocable Trust is also a great way to ensure a degree of discretion and is helpful if your family does not always get along.

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Before a trust can have any practical effect, it must be funded. That means you have to transfer your assets into the trust’s name or designate the trust as the beneficiary to receive assets when you pass away. Because a trust is a separate legal entity, you will need to execute deeds, assignments, and other paperwork with your financial institutions to properly fund your trust. At Harrison Estate Law, we provide step by step instructions to help you through this process.

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Revocable Trust: This type of trust, also known as a living trust, can be altered, amended, or revoked by the grantor (the person who creates the trust) at any time during their lifetime. As long as the grantor is alive and competent, they retain control over the trust assets and can change the terms of the trust as they see fit. The assets in a revocable trust typically pass directly to the beneficiaries (or to continuing trusts) upon the grantor's death, avoiding probate. A revocable trust does not provide asset protection for the Grantor, but it can provide asset protection for heirs and can provide estate tax benefits, particularly for future generations.

Irrevocable Trust: Once established, an irrevocable trust generally cannot be altered, amended, or revoked. The grantor relinquishes control over the assets and the terms of the trust. Since the assets are no longer under the grantor's control, most irrevocable trusts are not considered part of the grantor's estate for tax purposes, which can offer significant estate tax benefits. Additionally, irrevocable trusts can provide asset protection from creditors, depending on state laws and the specific terms of the trust.

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A revocable trust does not provide protection for you from lawsuits although if properly implemented they also do not make you more susceptible to lawsuits. Revocable trusts are a great way to set up asset protected trusts called spendthrift trusts for your loved ones after you pass away to protect their inheritance.

An irrevocable trust can protect your funds from lawsuits and provide estate tax planning benefits. However, in Florida, you generally cannot set up an irrevocable trust which you create, you control, and which benefits you (this is known as a “self-settled asset protection trust”) and have that trust protect your assets from lawsuits. Instead, you would need to set up the irrevocable trust to benefit others or have someone else set up an irrevocable trust that benefits you.

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A Durable Power of Attorney (DPOA) is a legal document that allows your agent or attorney-in-fact to enact broad authority for you so that they can assist you if you are alive but unable to act on your own behalf for any reason, and unable to make financial decisions for yourself. It allows the person to conduct all financial transactions for you, including banking, signing checks, filing taxes, selling your property, as well as other scenarios that may arise. It is important to note that this document goes into effect immediately, and this power lapses at the time of your passing.

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YES! You do not automatically have the right to make financial decisions for your spouse simply because you are married.

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If your family needs to make financial decisions for you or want to sell your home, they generally have to seek control over you via the court system through an expensive and unpleasant guardianship proceeding.

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A Designation of Health Care Surrogates is a legal document that grants someone (known as the surrogate) the authority to make medical decisions on your behalf if you become capacitated and are unable to make them for yourself.

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Not to be confused with a Last Will and Testament, a Living Will is a legal document that outlines your preferences for medical treatment and life-prolonging procedures if you become incapacitated, brain dead, terminally ill, or otherwise unable to communicate. This document helps that your healthcare decisions align with your values and gives you the freedom to refuse medical procedures such as artificial feeding, ventilators, or blood transfusions.

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This is a legal document that specifies who you authorize to have access to your medical records.

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Beneficiary Designations name someone as a POD (Pay-on-death) beneficiary for bank accounts and other financial plans such as a Roth IRA or a Traditional IRA.

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Heirs generally do not have to pay income tax on their inheritance. However, if the inherited assets generate income in the future, such as dividends or interest, that income is taxable. Regarding capital gains, heirs often benefit from a "step up in basis" at the time of death. This means the value of the assets for capital gains tax purposes is adjusted to their market value at the time of the deceased's death. If the heir sells the asset, capital gains tax would only apply to the increase in value from the time of the decedent's death to the time of sale, rather than from the original purchase price. This often reduces the capital gains tax liability for the heir. Heirs do have to pay tax on funds withdrawn from IRAs or similar qualified plans which they inherit.

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Probably not. There is no Florida state estate tax, and the current federal estate tax as of 2024 does not apply unless you have more than $13.61 Million of assets per person (so twice that for a married couple). However, some states levy their own estate taxes on land located in that state.

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You can give unlimited gifts to your spouse. You can give up to $18,000 per person, per year to anyone else (as of 2024). You can also pay for another person’s tuition and medical expenses in unlimited amounts as long as you pay the service provider directly. Any gifts over those amounts are considered “taxable gifts” and are required to be reported to the IRS on Form 709. You do not actually have to pay gift tax unless you give taxable gifts in excess of the estate and gift exemption of (as of 2024) $13.61 Million. Taxable gifts reduce your available exemption and therefore the amount you can leave estate tax free at death.

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You are not required to have a trust in order to get the step up in basis.

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Probate

It is the court process that transfers any asset in the decedent’s name individually that does not have a “pay on death” beneficiary designation or a joint title holder. This can be done with or without a last will and testament.

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No. A last will and testament has no power of transfer, but rather is a set of instructions from the decedent as to how they would like their probate assets distributed after death. The Court will review the last will and, if it considers it to be validly executed, follow the instructions laid out in the document to distribute the assets to the decedent’s beneficiaries.

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Fla. Stat. §732.502, includes that a last will must be signed by the decedent and two (2) witnesses to be enforceable. It is preferred that the last will be notarized, but if it is not, there are provisions for the acceptance of the last will by the Court for the purposes of probate. If you have questions, the attorney will advise you on any concerns you may have.

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Pursuant to Fla. Stat. §732.901, the original last will and testament is to be deposited with the clerk of the court in the county where the decedent lived within 10 days. A death certificate (without the cause of death) should accompany the last will. If it has been longer than 10 days, please do not panic. You can still deposit the last will and death certificate to comply with the statute and our office can assist with this requirement.

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No. The family members do not gather to have an attorney read the last will and advise family members of their inheritance. However, a copy of the last will is to be provided to beneficiaries listed in the document during the probate process.

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If there is no last will, then the probate is “intestate” and follows Fla. Stat. §732.102 and §732.103. Each case is specific to the decedent’s family relations. Generally, assets fall to the surviving spouse, the children (or a combination thereof), then to the parents of the decedent, and then to the decedent’s siblings, and so on. If you have questions, the attorney will advise you on any concerns you may have.

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Generally speaking, probate assets include those owned by the decedent at their time of death that were in their name individually (without a joint title holder) and do not have a “pay on death” beneficiary designated.

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The probate matter is filed in the county where the decedent lived at the time of their passing.

If the decedent is not a resident of Florida but owned real property here, then the probate is filed in the county where the property is located.

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Generally, any hearings in uncontested probate matters are handled via video or telephone conference. Also, most documents can be signed electronically, sent via email or hard copies mailed for signature.

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If the decedent had debts at the time of their passing, any “reasonably ascertainable creditor” should be notified of the probate matter. The attorney takes care of this notification during the probate process. “Reasonably ascertainable creditors” are determined by review of the decedent’s incoming bills, any bills already received by the decedent prior to their passing, review of the bank statements or check books, etc.

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If a decedent passed with a surviving spouse or children, certain property of the decedent is considered exempt property and passes to the surviving spouse or children without being subject to unsecured creditor’s claims. Examples are: two (2) standard vehicles and household furnishings. Once determined as exempt property, the asset cannot be used to pay a creditor claim filed in the estate.

Exempt property also often includes homestead property, though this is subject to a different set of rules.

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It depends, in part, on the location of the property and the amount of land. Pursuant to Florida Constitution, Section 10, Article 4, if the property falls within the city limits and is one-half acre or less, then the property is considered homestead. For properties outside of the city limits, the allowable acreage is 160 acres for homestead exemption.

Please note: This exemption does not make exceptions for mortgages on the property. Those liens remain attached to the property and the outstanding balance is still due and payable.

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Summary Administration: less than $75,000 in non-exempt assets OR the decedent passed away more than two years ago.

Formal Administration: non-exempt assets valued at over $75,000 and the decedent died less than two years ago.

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If the decedent had a last will, then the listed personal representative in the document has preference.

If there was no will, then Fla. Stat. §733.301 determines who has preference to act.

Convicted felons, minors, and incapacitated persons may not serve as a personal representative under Fla. Stat. §733.303. Also, a personal representative must have a certain relationship to the decedent if they reside outside of the State of Florida. A family member does not need to reside in Florida to qualify as a personal representative.

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Costs will depend on the type of probate required – summary vs. formal. As only an attorney can set fees, the attorney will discuss this with you during your consultation.

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It will depend on the type of probate required – summary vs. formal. Summary administrations are usually 3 - 6 months to complete and formal administrations are usually 6 – 12 months or more, depending on the circumstances. There are varying factors that determine the timeframe and usually are specific to each case and the jurisdiction where the case is filed.

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Drafting documents, filing documents with the Court, arranging for publication of Notice to Creditors, noticing beneficiaries and creditors that estate proceedings are ongoing, applying for tax identification numbers, and guiding the personal representative through the court proceedings until the Court issues the final order of discharge.

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Looking for the decedent’s last will and testament, securing and gathering the decedent’s assets, providing information to the attorney regarding the decedent’s family members, beneficiaries, assets and creditors, opening an estate checking account after court appointment, tracking deposits and expenses of the estate, distributing the assets of the estate to the beneficiaries upon court’s instruction, and filing any final tax returns for the decedent and estate.

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