What Is a Trust and Why Do You Need One in Florida?

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A person who is creating an estate plan or will is a testator. Testators largely have control over the terms of their wills and other documents. Although the law does limit testator actions in some ways, such as giving spouses protection from disinheritance, the testator can potentially set whatever terms they’d like in a will and other estate planning documents. The will someone leaves behind when they die largely determines what happens during estate administration. Their family members may have to assume a position of authority based on the wishes a testator included in a will. What they inherit also depends on the documents the testator drafts. Sometimes, families feel uncertain about the validity of the documents. There may be concerns about undue influence or a testator’s declining cognitive abilities in their last years of life. Families sometimes contest wills in probate court as a means of upholding someone’s true wishes. If there is a penalty clause in a Florida will, could litigation endanger someone’s inheritance? Florida does not enforce penalty clauses A penalty clause is a special inclusion in a will that eliminates the inheritance of someone who brings unnecessary litigation against the estate plan. Most states enforce penalty or no-contest clauses in some circumstances. If someone files a lawsuit challenging the documents a testator makes, the courts may eventually strip them of their inheritance rights because of that clause. Florida is unique in that state statutes outright prohibit the enforcement of penalty clauses. People can go to court out of concern for the terms included in estate planning documents without any risk of losing their inheritances. That risk is a powerful deterrent against misconduct and unnecessary litigation. The inclusion of a no-contest clause does not invalidate a will. However, the courts do not enforce such clauses by stripping someone of their inheritance if they initiate probate litigation. Penalty clauses serve only as a deterrent in Florida because of the unique probate statutes in the Sunshine State. That being said, probate litigation can diminish the value of an estate and could potentially reduce what someone eventually inherits. Pursuing a will contest in probate court requires careful planning and evaluating whether there are viable grounds for litigation. Those with an interest in an estate may need help reviewing relevant documents to determine the best options available to them.

When someone dies in Florida, family members often begin looking for evidence that the deceased created an estate plan. The decedent could have left specific guidelines for the distribution of their property. Wills and other documents can provide clear instructions about someone’s personal property after their death. Most families are grateful for the time that individuals commit to creating an estate plan. Having documents on record reduces conflict among family members and those who expect to be beneficiaries of the estate. People can feel confident that the inheritance they receive is something that the testator wanted to pass to them. In some scenarios, Florida state law determines what happens with an individual’s property. Intestate succession laws sometimes dictate the distribution of an individual’s assets after their death. Florida’s intestate succession laws heavily favored close family members, including spouses, children and parents. When do intestate succession laws apply to an estate? When someone dies without a will Some researchers estimate that approximately two-thirds of adults in the United States do not have estate plans. They lack even a simple will. If they die without any documents in place, intestate succession laws help ensure that their close, dependent family members receive the resources from their estate. Spouses and children are often the primary or sole beneficiaries of intestate estates. Intestate succession laws can also help families who believe will likely exist but are unable to locate it in the home of the decedent or similar locations where people are likely to store important documents. When the family contests the plan In some scenarios, disputes about the estate plan could be what leads to intestate succession in Florida. If family members or beneficiaries contest a will based on concerns about undue influence, incapacity or incredibly outdated documents, the courts may sometimes set a will or other estate planning documents aside. If there is not an older version of those documents to refer to, then the courts may treat the estate as though someone died without an estate plan at all. Understanding when intestate succession rules apply may benefit those with an interest in the administration of a Florida estate. Intestate succession can often be a complex process, and families that know the law can handle intestate estate proceedings appropriately.

You might be one of many Florida residents who own one or several companies. Perhaps you took the reins of a family establishment that has been operating for decades. On the other hand, maybe you are an entrepreneur who had a dream and made it a reality. Either way, it’s never too soon to think about the future. Now is the time (if you haven’t already done so) to implement a business succession plan as part of the estate planning process. There are key factors to keep in mind to ensure a solid business succession plan. One of the benefits of the estate planning process is that you can customize a plan to fit your unique needs and goals. While it’s possible to create your own plan, it’s always best (especially for business owners) to seek guidance from an experienced resource. This helps you avoid legal problems and ensure execution of the plans for your business when the time comes to administer your estate. What type of business succession do you have in mind? One of the first decisions to make regarding business succession is what type of plan you have in mind. Do you want your business to stay in the family? If so, do you have adult children or other relatives in mind who are willing to carry the torch? Another option is to incorporate a buy/sell clause as part of your estate plan. If you want to sell your business when you die, it’s important to stay updated with valuations, so that the current fair market value of the business is on record. There doesn’t have to be a limit on your buy/sell plan to occur solely upon your death. You can also include instructions for such a plan to take effect if you become incapacitated or officially retire. Discuss your estate planning ideas with your family You’d be surprised how many people make the mistake of implementing a business succession plan as part of an estate plan without discussing it with family members designated to play key roles in the future of the business. Transferring business ownership and operations is not something to do “as a surprise.” You’ll want to discuss your plans with all family members to whom the plans are relevant. Make sure that those for whom you wish to set aside specific roles are willing to accept the responsibility. Avoid making assumptions. For example, you might have an adult child in mind as future owner of your company, but he or she might not want to accept the role. The same goes for non-family members who you might have in mind as part of your business succession plan. It’s also wise to have an experienced legal representative periodically review your estate plan to make changes or updates as needed.

Whether you’ve been married for decades and have several grown children plus grandchildren or you’re on the younger side of 30 and single, you might want to sign a last will and testament. It’s a myth to think that this topic is only relevant to elderly or wealthy people. The estate planning process, and particularly the signing of a will, is beneficial to any Florida resident who has reached the age of majority (18) or has gone through emancipation as a minor. It’s one thing, however, to decide to execute a last will and testament and quite another to know how to do so in accordance with Florida’s estate planning laws. If you create a will that does not align with such laws, a probate court judge will likely rule that it is invalid when the time comes to administer your estate. Therefore, it’s important to research state laws regarding wills, especially to learn what types of wills this state does not recognize. Florida estate planning laws prohibit nuncupative wills Nuncupative is a word that derives from the Latin word “nuncupare,” which means “to name.” In relation to estate planning , a nuncupative will is a last will and testament that a testator (person creating the will) issues verbally, rather than in writing. In the past, and in other states, people have often created nuncupative wills on the battlefield or in the last hours (or moments) of life after a car accident or other catastrophic event. It is essentially a verbal will. If your goal is to execute a last will and testament in Florida, be aware that this state does not recognize nuncupative wills. Many people consider this an incentive to create a written will early on in life, in case something unexpected happens that places their life at risk. Without a valid will in place, your estate would become “intestate,” which means a probate court judge would determine how to distribute your assets, which may or may not align with what your personal preferences might have been. A last will and testament cannot be holographic in this state Another issue that creates invalidation of a last will and testament in Florida is a holographic will. This is confusing to some people because a holographic will is a written will, and state law demands that one submit a will in writing to be valid. However, a holographic will is a will written in a testator’s own handwriting, so you might wonder why Florida estate planning laws prohibit this type of will. The reason is that holographic wills, although they are written, are not signed by any witnesses. In this state, a will is invalid if at least two credible witnesses do not sign it (in the presence of the testator). These witnesses must also witness each other signing the will. In short, a holographic will meets one requirement for validity (that one has written a will) but does not meet the requirement stating that two or more people must witness the testator signing the will and must sign the will themselves. To avoid confusion or legal obstacles down the line, it’s always best to seek experienced estate planning guidance before executing a will.