Answers to Frequently Asked Questions
1. Is it better to have a Will or a Trust?
A Will and a Trust are two different types of documents. A Will is a Probate document and guides your estate through the Courts. A Trust is outside the Courts, but it is administered much the same way. Some clients do not want their private matters on the public docket, or they have a very simple estate that does not warrant a Trust. One mistake people make is having a Trust without a Will. Everyone should have a pour-over Will that essentially pours any assets that were not previously transferred to the Trust into that Trust at time of death. Then those assets will be divided as the Trust dictates. Both avenues have their advantages and disadvantages. Attorneys take their clients through the options and come up with a plan that satisfies their client’s needs.
2. How much does estate planning cost?
At my firm, I provide services for a flat rate depending on the client’s needs. A basic package with a Will, Durable Power of Attorney, and Health Care Surrogacy for an individual is a flat fee of $500. For a couple with mirror image documents, it costs $800. If estate planning becomes elaborate or is more complicated, it will range from $2,000 up to $5,000. This type of planning includes different types of Trusts, Deed transfers, the basic documents mentioned above, and other documents as necessary.
3. What estate planning documents do I need?
Bare minimum you need your Durable Power of Attorney, which is your banking power; and your Health Care Surrogacy, which is your health power. The people that you choose to take care of you if you can’t are very important. If you have not prepared these documents and you become incapacitated, then you will be in Guardianship Court looking at being placed under a guardianship, which will be under the control of the Court.
4. Do you need an attorney for estate planning?
I have had clients come to me with self-prepared documents which would have had bad results if they would have remained in place. An attorney will be able to help you plan for issues that might not have crossed your mind. Your attorney will be someone that you can trust to give you good, solid advice and write up legal documents that will be correct and valid in Florida.
5. What should you never put in your Will?
Your choice of Personal Representative who does not qualify under the law in the State of Florida. Your choice must be over the age of 18, not have a felony record, and not have a mental disability.
6. What is the disadvantage of a living trust?
There is no real disadvantage of a living trust. It is a very flexible document that can give you many avenues for distributing your assets when you pass-away. But, if you are looking at Medicaid Planning because something has happened and you must enter a nursing home, the assets in the living trust are countable assets for Medicaid purposes. You need to seek out your attorney to see what your options are when planning for a nursing home.
7. What is a Probate?
A Probate is initiated when a person dies and there are assets and bills that must be taken care of. If a person dies without a Will (intestate), or with a Will (testate), a Probate is started in the Court’s Probate Division. In the Probate the assets, debts, and beneficiaries are identified, then the debts are paid and the assets are distributed.
8. Questions to ask a Probate Attorney.
Be honest and forthright with your attorney, then address any concerns you have. It can be about family dynamics, or a child that has a problem with managing money. If you have a blended family, ask about protecting your current wife if something should happen to you. If you have real property out of state, then let your attorney know and ask how best to address this issue. If you or your spouse have a degenerative disease, talk to your attorney about the future and what would be best regarding the protection of assets.
9. Why do I need a Will?
If you have a Will, you will be telling the Court what your wishes are regarding your asset distribution. Without a Will, the Court will use the intestate laws, which might distribute the assets in a way that makes you unhappy.
10. Do I need a Will or a Trust?
This choice will be covered in your planning with your attorney. There are benefits to both. A Will is administered in Probate Court, and a Trust is outside of Probate. A Trust is a more flexible document that allows for more diverse planning. If there is a beneficiary who has debt or has a disability, a Trust may be a better option. If there are not a lot of assets, and the estate is fairly simple, a Will might be a better option. A Trust costs more than a Will upfront, but there are Court costs when a Will is administered. So pay now or pay later.
11. Do I need a Will if I have beneficiaries?
If you do not have a Will, you have an intestate estate and you have heirs. If you have a Will, you have beneficiaries. The laws regarding administrating an intestate estate are different than the law governing a testate estate. In an estate with a Will, you decide who your beneficiaries are. In an intestate estate, your heirs are decided via an Heir Chart established by law. If you have a blended family, this could create some issues.
12. What should you not include in your Will?
If you have a lot of memorabilia, family jewelry, or art, it is best to have a Separate Writing that works with the Will. There should be a clause in the Will allowing you to have a Separate Writing in which you can distribute items to people of your choosing. You write this out naming the item and the person. Once the list is done, you sign and date it. Then provide a copy to your attorney to be placed with your Will. If you should decide to change the Separate Writing, then start all over again. Do not cross things our and redistribute. It can often cause hurt feelings and fighting. Any time you rewrite it, remember to share the new copy with your attorney.