FAQ

Frequently Asked Questions & Videos

Have a question? Browse our frequently asked questions (FAQ) and watch the videos Walser Law has produced for answers:

Asset Protection


  • What protection is available by a revocable living trust?

    Incorporating irrevocable living trust into your estate plan come to the number of benefits but chief among them are that it helps to avoid the probate process which can be lengthy and costly to an estate. The second is that it helps you in the event of an incapacity so if you find yourself incapacitated after an accident or perhaps after developing dementia, the document would dictate who’s to take over your trust and will give them access to your money in order to pay for your care.


    We, at Walser Law Firm, provide a revocable living trust for our clients. A revocable living trust is one that is very helpful in avoiding probate. Let’s start by defining what probate means. Probate is the process by which the law court sees to the distribution of property that belongs to a deceased person at the time of death after all the debts and taxes of the deceased have been paid in full.


    During your lifetime, you are allowed to transfer ownership of your assets to a revocable trust. This is done so that these assets are owned by the revocable trust after your death and is, therefore, subject to probate.


    The properties in a revocable trust can be revoked, meaning it can be taken back or the terms of the trust can be changed, as long as you are alive and deemed competent to make such decisions. Your creditors can take those assets during your lifetime if you owe them money because you retain control of the trust. However, the trust makes it more difficult for creditors to access these assets.


    A revocable trust can become irrevocable after the death of the grantor. This implies that the assets that have been entrusted into the trust cannot be taken back, and they must be given out to the beneficiaries of the trust as directed by the trust document.

  • What do I need for asset protection and Medicaid planning?

    You need to meet and speak with a competent attorney to come up with a well thought out plan for preserving your assets for long-term care planning.


    To protect your assets, you need to meet and speak with a competent attorney to come up with a well-thought-out plan for preserving your assets for long-term planning.


    With the Deficit Reduction Act of 2005, it is much more difficult to meet the requirements for Medicaid as a citizen age 65 and older in need of long-term health care. The most severe consequence of this act is the directive that transfers made within a “Medicaid look-back period” would render a person ineligible for Medicaid services.


    With this five-year look-back period taken into consideration, and given the complexity of the application process, many people have been reluctant to engage in Medicaid planning.


    However, Medicaid planning should be employed to counter these adverse requirements and protect one’s assets.


    For those who may be wary of expending their savings due to the high cost of long-term care, a transfer of assets, following a well thought out plan is highly recommended. Transfer of assets, if done correctly, can be beneficial.


    There are some asset protection strategies that could prove very useful, such as Federally exempted funds, Caregiver agreements, and Pooled income trust.

  • What are the common mistakes in Medicaid asset protection planning?

    Improperly moving your assets. If you improperly move your assets it may qualify as a gift or uncompensated transfer, which if done within the last five years prior to application, you could be penalized for.


    There are many ways one can make a mistake when dealing with Medicaid asset protection planning. There is a very complex system with some rules that must be followed, and failure to follow them could lead to the offender being penalized.


    One of the mistakes that many people tend to make is the $15,000 per year gifting allowance. It is important to note that this is not a Medicaid rule but an IRS rule. In the Medicaid world, failure to comply with this rule will result in penalization for a full five years from obtaining any Medicaid coverage.


    Another mistake many people make is their failure to pre-plan. Most people do not consider the possible need for long-term care at a time when they are still young and healthy.


    However, pre-planning is the surest way to avoid the possibility of losing a lifetime of savings to the costs of long-term care. This is how it works; If you are young enough and can qualify, a long-term insurance plan should be considered and purchased.


    Talking about common mistakes, people make in their dealings with us; the late application is a prevalent one. The timing of a Medicaid application is very crucial. If you intend your savings to be used for your long-term care needs, make a claim right away.

Elder Law


  • Why should I apply for Medicaid coverage?

    To help give you and your family financial assistance for long-term planning and potentially preserve some of your hard-earned assets.

    Walser Law Firm is founded with the intention of assisting those with various challenges, low-income earners especially.

    We help give individuals and their families financial assistance for long-term care planning to potentially preserve some of their hard-earned assets.


    There are specific categories of people who are eligible to apply with us for Medicaid, and they include, low-income earners below a certain age, pregnant women, parents of Medicaid-eligible children who meet specific income requirements, low-income disabled individuals who receive Supplemental Security Income (SSI), and the low-income earners of ages 65 and older.


    Registering with us will help provide you and your family with mandatory medical and health care services such as nursing facility services, home health services, physician services, family planning services, nurse midwife services, x-ray and laboratory services, rural health clinic services, and inpatient – outpatient hospital services.


    Medicaid can also provide a couple of optional benefits such as prescribing drugs, clinic services, physical therapy, occupational therapy, respiratory services, personal care, prosthetics, dentures, dental services, podiatry services, hospice, services in an intermediate care facility for people with intellectual disability, services for individuals aged 65 or older in an Institution for Mental Disease (IMD), psychiatric services for individuals under age 21, etc.

  • Why is it important to have a supplemental needs trust in place for a disabled person?

    It helps protect any inheritance or gifts you would like to leave that disabled person while still allowing them to remain eligible for their government benefits.


    It is essential to have a Supplemental Needs Trust (SNT) in place for a disabled person -blind, deaf, dumb, etc. – with the purpose of making life better for them.


    It helps protect any inheritance or gifts that you may like to leave to that disabled person while still allowing them to remain eligible for their government benefits.


    Not just anybody with a disability needs an SNT, however. Generally, an SNT is done for a person receiving, or likely to receive means-tested public benefits. Medicaid and Supplementary Needs Trust are examples of means-tested federal benefits.


    An SNT can help a person with a disability by allowing such a person to receive distributions from the trust without the trust being counted as a resource. The person maintains his eligibility for public benefits while also getting his quality of life enhanced.


    However, there are certain limitations. The trustee can spend on “Special Needs” but not “Support.”  There are certain things Trust money cannot pay for, such as mortgages, electricity bills, or property taxes.

  • What is Medicaid?

    It is a jointly funded federal and state program to help cover the medical needs for low income individuals.


    Most people use the term “Medicaid” and “Medicare” interchangeably, but there is a huge difference between these two seemingly close terms. While Medicare is a Federal program that provides insurance if you are aged 65 or older; Medicaid on the other hand, is a Federal program providing insurance for people with a meager income.


    It simply means that no matter how old you are, as long as you earn very little, you are eligible for Medicaid. The State and Federal government jointly fund this program. Although the Federal government creates it, is administered by the state.


    Currently, the Medicaid program covers 55 million low-income Americans, and it is rapidly becoming a powerhouse player in healthcare.

  • What is a special needs trust?

    It’s a vehicle that can provide life-enhancing services for an individual that has special needs while still allowing them to remain eligible for government benefits.


    A special needs trust, also known as a supplemental needs trust, is a specialized trust that provides disabled beneficiaries with the opportunity to enjoy the use of property that is held in the trust for his or her benefit, while also allowing the beneficiary to receive essential needs-based government benefits at the same time.


    A Special Needs Trust (SNT) is a special type of irrevocable trust that can be used for minors, and beneficiaries with disabilities (either mentally or physically challenged), and as a method of asset protection.


    They are usually used to receive an inheritance or personal injury settlement on behalf of a disabled person, or a minor and are found from the proceeds of compensation for litigation, criminal injuries, or insurance settlements.


    Special needs trusts are usually set up under the watch of a “structured settlement planner” in line with a qualified legal and financial team to ensure the trust is appropriately set up.


    At Walser Law Firm, we help to protect any inheritance or gift you would like to leave that disabled person, while still allowing them to remain eligible for their government benefits.

  • What income is available to a spouse that is not in need of Medicaid for long term care benefits?

    There is no level to the income a well spouse can have. Speak to a competent attorney about other options when it comes to an applicant’s income being diverted to the well spouse.


    You don’t have to worry when your spouse goes to a nursing home, there is something called “spousal protections” that allows you to keep some assets and income and still qualify for Medicaid with us.


    Walser Law Firm does not require a healthy spouse to give out all of her income and property, just for the needy spouse to qualify for long-term care through Medicaid.  We implore “spousal protection” rules to provide the spouse of a nursing home resident the opportunity to keep enough income and assets to live on.


    We also allow these spouses to keep some of their spouse’s income if they are in need of serious financial support. “Minimum Monthly Maintenance Needs Allowance” (MMMNA) is the amount of money a spouse can keep, and the good news is; it is not added to the Medicaid eligibility calculation. The MMMNA varies from state to state, but the government tries to regulate it according to some poverty guidelines.

  • What are the Medicaid application and eligibility requirements?

    You must be a US citizen or be a resident alien, and must have medical needs requiring a nursing home, car, and meet income and asset eligibility requirements.


    To participate in Medicaid, Federal Law requires us to cover certain groups of people, including low-income families, qualified pregnant women and children, and individuals receiving Supplemental Security Income (SSI).


    We also have additional options to cover other groups including individuals receiving home and community-based services and children in foster care who are generally not eligible.


    The Affordable Care Act of 2010 opened up an opportunity for us to expand Medicaid to cover almost all low-income Americans under the age of 65.


    If eligible, you should try to apply for Medicaid to help give you and your family financial assistance for long-term care planning and potentially preserve some of your hard-earned assets.

  • Is there a citizenship requirement for Medicaid?

    Yes, you must be a US citizen or a resident alien in order to receive Medicaid.


    Under a federal requirement that took effect from July 1, 2006, most United States citizens applying for Medicaid or renewing their coverage will be required to prove their citizenship by submitting a passport or a combination of their ID and a birth certificate.


    This requirement was put in place to prevent illegal immigrants from fraudulently enrolling in Medicaid.

  • If my spouse is going into a nursing home, can he transfer all of his assets to me and qualify for Medicaid?

    Your spouse cannot transfer all of his assets to you in order to qualify for Medicaid. There is a level, around 119,000, that the community spouse is allowed to keep. Please speak to a competent attorney for more information.


    We allow a spouse to keep one-half of the couple’s marital assets, subject to a minimum and maximum, according to federal guidelines. We will measure the assets of the spouse applying for Medicaid on the date that he/she began a hospital or nursing home stay that lasted at least 30 days.


    The amount of assets the healthy spouse is allowed to keep is called the “Community Spouse Resource Allowance” (CSRA).


    If a spouse living in a community needs more assets than the CSRA, he/she can seek a court order allowing a variation from the state agency’s standard.

  • If I enter a nursing home as a private pay resident, do I have to use my assets before I can get Medicaid?

    No, you do not have to use your assets before you can get Medicaid. Speak to a competent attorney about ways that you can preserve your assets while still being eligible to qualify for Medicaid.


    Private pay residents in a nursing home are those who can pay their monthly nursing home costs from their income, savings, or money that they received from selling their assets. We have a set daily fee for “private pay” residents which is stated in the nursing home contract.


    Make sure you read the nursing home contract carefully before signing so that you won’t give consent to a wrong agreement.

  • If I am in the nursing home, is it too late to give away my assets and qualify for Medicaid?

    It is never too late to give away your assets to qualify for Medicaid.


    In most scenarios, the person’s current situation determines whether it is legally possible to give away all assets and immediately qualify for Medicaid. Most people think once they are in the nursing home, they have to spend all their assets on nursing home care until they meet the Medicaid criteria but it doesn’t work that way.


    Even in the nursing home, an individual can carefully plan for Medicaid to help him/her meet up the criteria and qualify

    Our attorney here at Walser Law Firm can help you journey on ways to move your assets properly to preserve them to qualify.

  • I heard Medicaid can take our house for reimbursement. Is that true?

    Yes, and the level of its veracity has been conditioned. Medicaid is an entirely unique program that considers paying for its participants’ long-term care, for this reason, Medicaid has the right to be reimbursed for the entire amount it exhausted to care for its participants.


    Every state has its guidelines and legal procedures for the Medicaid reimbursement process. One of the things that qualify a participant for Medicaid is that the participant must be a low-income earner and possess few assets apart from their home. However, this depends on the participant’s state of residence. For anyone who qualifies, Medicaid foots the entire bill of a long-term stay in a Medicaid participating nursing home.


    If Medicaid shoulders the bill of its participants, then it has the right to seek reimbursement for all the calculated expenses it has covered to care for participants by merely making a claim. The reimbursement comes from the value of a participant’s house.


    This case is more prevalent when Medicaid discovers that a participant is dead, this process is always referred to as “Estate Recovery.”

  • How much income can I make and qualify for Medicaid?

    To be honest, there is no specific amount you need to make as an income before you qualify for Medicaid; therefore, the income level is set depending on the state you live in, just as required by federal law.


    Strictly considering two factors, which include the state you live in, and the size of your family or household determine the income level. The latter states that income can be higher; when there are more people in the family, which includes any dependents irrespective of the age, while the former poised that after the federal might have set the required minimum standard for the Medicaid program, each state has the legitimate right to increase the income level to ensure it covers more people.


    The federal Medicaid set its income level or eligibility based on the Federal Poverty Level (FPL). On the average, you are to make $2,199/month as income; if you make over that amount, then you are considered qualified. (Kindly note, the dollar rate used may change anytime, therefore don’t rely on this figure until you verify the current rate.)


  • Do I have to wait 5 years after giving anything away to get Medicaid?

    Medicaid has a five-year look-back period from the date of application where they look back five years to see if you’ve given away any gifts or uncompensated transfers. If you have, they have a penalty for that.


    During your Medicaid application process, one of the questions you are expected to answer is “Have you made any transfers or gifts in the last five years?” now, if your reply is yes! This might lead to disqualification or penalization and also required to mention any of the gifts or transfers you have made.


    The Medicaid state officials will look only at giveaways within five years i.e., 60 months before Medicaid application. To ensure accurate calculation by Medicaid, the total number of what you gave away will be divided by the penalty divisor (which equals the cost of nursing home care in the state).


    However, during the Medicaid look-back period, sometimes the penalty for transfers is not applicable to all transfers depending on what asset was transferred and the person such asset was transferred to, and the time of the transfer. In all, the look-back period determines what kind of transfer will be penalized.


    If this is somewhat confusing, you can always consult Walser Law Firm for more clarification.

  • Can I transfer my assets to my children just before I go into a nursing home and still qualify for Medicaid?

    No, you can not transfer your assets to your children just before you go into a nursing home and still qualify for Medicaid. This would be considered an uncompensated transfer. When applying for Medicaid, they look back five years for any uncompensated transfer and you would be penalized for this.

  • Can I be barred from Medicaid if I just moved into Florida?

    No, you can’t be barred. Medicaid is a federal program although the requirement and eligibility vary from state to state.


    As long as you are a US citizen, a Florida resident, or a resident alien and you meet the requirement of Florida, then you are eligible for Medicaid.


    Also, the federal government regulations apply to all states, and it’s an infringement of the US constitution to enforce a residency requirement on an individual who moves to a state.

  • Are the rules for Medicaid different in each state?

    Yes, the Medicaid rules vary from state to state. Designed to provide coverage for economically disadvantaged populations across America, Medicaid rules vary based on the population of each state. Federal law sets broad requirements for Medicaid and mandates coverage of some populations and benefits, while leaving others optional. Each state has the flexibility to improve, modernize and update its Medicaid program by choosing:

    • Who is eligible for enrollment
    • Which services are covered
    • How payments to providers are established

    It is often said that variability in Medicaid is the rule rather than the exception. States establish their own eligibility standards, benefit packages, provider payment policies, and administrative structures under broad federal guidelines, effectively creating 56 different Medicaid programs—one for each state, territory, and the District of Columbia.


    These are established through each state plan, a comprehensive document that must be approved by the Centers for Medicare & Medicaid Services. The document can be amended as needed to reflect changes in state policy, federal law, and regulation.

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Probate


  • What effect does a subsequent marriage, divorce or child have on a will?

    If you make a will and subsequently get married and do not change your will, then the spouse has statutory provisions that automatically apply to her. She gets a homestead, she gets elective share, she may get a family allowance, she may get exempt property, and there may be other benefits. If you have a subsequent divorce and you have not changed your will, then Florida statute provides that the court strikes out all provisions related to the ex-wife or ex-spouse, and that he or she is treated as pre-deceasing the decedent.

  • What can I do if I have a copy of the will or trust that predates or postdates the version with the court?

    You only need to file the most recent version of a will or a trust with the court, so if you have a copy of a document which predates the one that’s filed with the court, you can simply hold onto that. You don’t have to throw it away, but it’s not necessary to file it. If you have a document that postdates the one with the court, you need to figure out how you’re going to file that with the court.

  • What can be done if there are not enough assets to cover the deceased’s debts?

    Creditors of a decedent are paid in order according to Florida statute. If there are not enough state assets to fulfill the last class of creditors, they are paid proportionally according to their claims.

  • What authority do I have as administrator to manage the estate assets?

    An administrator of an estate, which another term for a personal representative, has great flexibility to manage the assets of an estate. They’re allowed to sell real estate. They’re allowed to move brokerage accounts. They just have to understand that they’re going to be held responsible to making payments to the beneficiaries at the end of the day.

  • What are probate assets?

    Probate assets are assets that were titled in the decedent’s name solely with no designated pay on death beneficiary.

  • What are letters of administration?

    Letters of administration is the key document that you’ll receive from the probate court once an estate is successfully opened. It will appoint the personal representative and it will empower that person to handle the assets of the estate.

  • What are estate taxes?

    There are 2 types of estate taxes. There’s federal estate tax and state-level estate tax. In Florida, we have no state-level death tax or estate tax, as it’s also known, so you only have to worry about federal tax liability. This applies to estates that are worth more than 5.4 million dollars. If it’s a couple, you can combine their exemption for an estate worth more than 10 million dollars. Federal estate tax tax bracket is around 40% so it’s very important that you plan with an estate planning attorney to make sure that your estate will avoid any potential federal estate tax liability.

  • How should I deal with the time and costs of probate?

    Plan in advance and speak to a competent probate attorney, knowing that the probate process can be timely and costly.

  • How long will probate take?

    The probate process can be quite lengthy. There are two basic forms of probate for most estates. There’s formal probate which is the full administration for estates that are of a larger size. That can take anywhere from six months to a year. We also have the summery administration which is only available for slightly smaller estates. That can last from three to six months.

  • How can someone see the will of a person who has died?

    Anybody can see a copy of a will that’s been filed with the court. It’s an open document. Therefore you can contact the clerk of court online, determine the case number, and follow the instructions on how to get copies of any documents filed with the court.

  • How can I plan to avoid or minimize probate?

    Meet with a competent attorney to come up with an estate plan where you can properly title your assets or draft a revocable trust in order to avoid or minimize the probate process.

  • How can an estate plan prevent probate of my estate?

    With properly titled assets and potentially the drafting and funding of a revocable trust, you can avoid the probate process.

  • How can an attorney assist me in the probate process?

    An attorney is going to assist you in the probate process by initially filing the will and getting a person appointed as personal representative. Then the attorney will be responsible for filing any future pleadings during the probate process until the estate is finally closed.

  • How are taxes handled in probate?

    Florida has no estate tax on the estate level and no inheritance tax for beneficiaries of an estate. You only have to worry about potential federal estate tax liability. An estate worth more than $5.4 million has a potential estate tax liability and will be required to file a 706 estate tax return. If the couple is married, they have a combined exemption of around 10 million, if not closer to $11 million.

  • How are fees determined for the personal representative and attorney?

    The personal representative and the attorney for the personal representative are entitled to reasonable fees for the services they offer to the estate. Both of those parties can contract for their fees before offering services, but generally the State of Florida does have recommendations on what is considered are reasonable fee. For both the personal representative and the attorney for the personal representative, it’s generally around 3% of the estate assets.

  • Does the property automatically transfer to my name or do I have to register the property with the state?

    Any assets that were held by the decedent jointly with someone else, or that had a pay-on-death beneficiary, can automatically transfer after death. Any assets held in the decedent’s sole name with no designated pay-on-death beneficiary will be required to go through the probate process.

  • Does the probate judge have to approve creditors claims?

    No, the probate judge does not have to approve creditor claims unless the personal representative objects to one of the creditor claims and a separate suit is started by the creditor in order to collect their debt.

  • Does all property have to go through probate when a person dies?

    It depends on how the assets are titled. If the assets are titled jointly or have a Pay-on-Death beneficiary, then they do not have to go through the probate process.

  • Does a spouse share the inheritance given to his husband or wife?

    An inheritance by an individual is not normally shared with a husband or wife automatically. Normally, an inheritance received by a son or daughter or by a beneficiary is a separate asset and is treated as such until he or she makes the decision to put it into a joint bank account with his spouse, to put it into a joint brokerage account to buy a new home and put it in joint name, to buy a new, better home and put it in joint name. Until the beneficiary makes the decision to co-mingle or to share the asset, it remains their separate asset. Once you co-mingle or share it, it has major impacts on marital rights and inheritance rules for that beneficiary.

  • Do life insurance or retirement benefits need to go through probate?

    It depends on how the assets are titled. If they’re titled in the decedents sole name with no designated pay on debt beneficiary, then yes, they would need to go through probate.

  • Can you avoid probate by leaving a deed filled out and notarized but not filed until death?

    Leaving an unfiled deed is never a good strategy for avoiding probate. It is highly recommended that you file the deed prior to death in order to make the proper transfer.

  • Can an executor or trustee be removed?

    Yes, an executor or personal representative and a trustee can be removed by petitioning the probate court to remove them from serving.

  • Are probate records available on the internet?

    Some probate records are available online depending on the state. Florida makes certain information available, so you can go to the County Clerk’s website for the county in which the person passed away, and look up their name to see if an estate has been opened. You can only access limited information online. It will show you the name of the person who passed away, any attorney that’s involved, and the person who did the initial filing. If you want to see the actual documents, you have to visit the county courthouse.

  • Am I responsible for my deceased parent or spouse’s bills?

    It depends on whether the debt is secured or unsecured and may potentially follow real property, or how the debt was acquired; if it was in the decedent’s name solely or potentially in joint names with another beneficiary.

  • A creditor has filed a creditors claim. What do I do now?

    The attorney representing the personal representative of the estate is reasonable for handling creditor claims. I highly recommend you consult with an experienced probate attorney in order to address the claims of any creditor.

  • What types of property need to go through probate?

    Any property owned by a decedent jointly, or they had a designated pay on death beneficiary, or any property that was owned by irrevocable trust during the decedent and during his life, do not have to go to the probate process.


    Why is it important to know the names and addresses of the family members and relatives of the deceased?

    It’s important to know the names and addresses, and other contact information, of the family members of the person who just died. Often times, they’re going to have to be contacted during the probate process in order to finalize things.

  • Why, if at all, must an estate or assets be probated?

    Assets may need to be probated depending on how they are titled. If they were titled in the decedent’s name solely, with no pay on death beneficiary, they will be required to go through the probate process.

  • Who should I name as executor personal representative of my will?

    A person should name a personal representative who number one they trust with their last penny and number two who will be able to deal with the duties of a personal representative. The duties are to one is to secure or protect and accumulate all of the assets. Duty number two is to pay all the debts and expenses of the estate. Duty three is to distribute the assets in accordance with the decedent’s instructions. So you need a trustworthy person who can fulfill all these duties.

  • Who can be appointed executor (personal representative)?

    A person is free to name a family member, a non-family member, or a corporate entity in their last will to serve as their personal representative. If the person is a family member of the person who died, then they can be a resident of any state. If the person nominated is not a family member of the person who died, they must be a resident of Florida in order to serve. No personal representative can serve if they’ve ever been convicted of a felony.

  • Who can and who can not be appointed personal representative?

    You’re free to nominate family members, non-family members, or corporate entities as your personal representative in your last will. If the person you’ve selected is a family member, they can be a non-Florida resident. If they are a non-family member, they have to be a Florida resident in order to serve.

  • Which law applies if the decedent owned land in more than one state?

    The probate process is initiated in the state where the decedent was the last resident of at the time of death. The laws of that particular state will govern for most assets within the estate. If there is real estate located in different states, then the laws of that particular estate will apply to that piece of real estate.

  • When can I close the estate and distribute the assets?

    An estate may be closed after all creditors have been paid, after all taxes have been paid, and there’s no remaining outstanding matters.

  • Where is probate handled?

    Probate is handled in the county of where the decedent last resided.

  • When is probate required to transfer title to real estate?

    Any property that was owned by the decedent in their sole name with no designated pay on debt beneficiary will be required to go through the probate process in order to clear title.

  • What types of property do not need to go through probate?

    Any property that was owned by the decedent jointly with another individual or any property owned by the decedent that had a pay-on-death beneficiary are not required to go through the probate process.

  • What should I do to prepare for seeing a probate attorney?

    Collect to bring in all of the decedent’s estate planning documents if she had any, and collect any financial or asset statements and information for the decedent that you may have.

  • What rights do surviving family members have in probate?

    That depends on if they are beneficiaries under a decedent’s last will and testament, or maybe beneficiaries under Florida rules of intestacy, if the decedent had no last will and testament, or if they are potential creditors of the estate.

  • What other probate avoiding techniques are there in addition to living trusts?

    Techniques to avoid probate other than establishing and funding a living a trust are to own assets jointly with right of survivorship, typically between husband and wife or surviving spouse and children; to name beneficiaries on the designation of beneficiaries for pensions, insurance, contracts, annuity contracts; and you can also put payable on death, due on death, held in trust for, and name one or more beneficiaries on accounts, bank accounts, brokerage accounts, stock certificates, eBonds.

  • What must I do to close the estate?

    In order to close an estate, you have to make sure any creditors of the decedent have been properly paid and then distribute any remaining estate assets to the designated estate beneficiaries.

  • What is probate?

    Probate is the process by which you transfer a decedent’s assets to the designated beneficiaries and pay any creditors of the decedent.

  • What is ancillary probate?

    Ancillary probate is the probate process of a nonresident decedent who passed away owning real property or other assets in the state of Florida.

  • What is an executor (personal representative) or executrix?

    An executor or a personal representative, as we call them in Florida, is a person nominated to handle the probate process and to administer whatever assets are in the estate, so they’ll be responsible for hiring an attorney, getting the appropriate process started, and then eventually making final distributions to the beneficiaries.

  • What is a formal probate?

    Formal probate is the process by which you transfer a decedents assets that are valued more than $75,000.

  • What if I no longer own the assets that I have willed?

    If your will provides for gifts of assets that you no longer have, the best thing is to change your will, with a codicil, in order to delete those assets. If you don’t delete the asset upon your death, it’s normally, the gift has failed, because the asset is not present. It can present a problem, because if the asset was disposed of in your normal course of living, and you used the proceeds to pay your living expenses, then that will prevent a contest. If the asset was gifted away to another family member, another beneficiary, or to a nursing aide, then there’s a potential of a contest, not of the will, but of the gift before the date of death.

  • What happens if we cannot find the decedent’s will?

    If you cannot find a decedent’s will, the law presumes that he destroyed it. Now, there’s a couple options, is that if you can find a copy or obtain a copy from the last known lawyer who prepared one, if the beneficiaries in the will agree, then you could try to probate a copy of the will. If the beneficiaries of the last will do not agree, then it could end up being a contest where you could have one set of beneficiaries trying to probate a copy and another set of beneficiaries trying to probate under laws of intestacy.

  • What happens if we cannot find a will?

    If you can’t find a will, the estate will pass intestate. This simply means that the assets will be distributed to people that the State of Florida has selected as your beneficiaries. Typically, 100% of the assets will go to the surviving spouse, unless it is a non-nuclear family and there’s multiple sets of children. Then the surviving spouse gets 50% of the estate and the rest of the money is divided among the surviving children.

  • What happens if one dies without a will?

    When a decedent dies without a will, Florida statute provides under the laws of intestacy, which is dying without a will, how these assets are distributed. If he has a spouse and no children, then 100% goes to the spouse. If he has no spouse and children, then the assets go equally to his surviving children per stirpes. If he has a spouse and children from that woman or other women, or a spouse, then it goes half to the surviving spouse and half to all of his children from whatever marriages. If there is no spouse and children of multiple marriages, then it goes equally to all his children. If you have no spouse and no children or issue, then it goes up to mother and father. If they’re gone, you need to talk to a lawyer about going to brothers and sisters per stirpes.

  • What happens if an emergency arises before a personal representative is appointed?

    It really depends on the type of emergency you’re dealing with. Only the personal representative is empowered to sell property or to deal with the assets of an estate. Any next of kin or potentially nominated personal representative can deal with third parties in order to handle an emergency, but it’s really in the discretion of that third party whether they want to honor dealing with this person.

Probate Duties


  • Who may initiate probate?

    Anyone that is considered an interested party to the probate process may initiate the probate proceedings.

  • Who is responsible for handling probate?

    Any interested party can begin the probate process for any particular estate. Oftentimes it’s the person nominated in the last will, who will also be a beneficiary, who’ll get the ball rolling and start the probate process. It’s their job to hire an attorney to represent them during the probate process. That attorney will guide them through the probate process and also handle any pleadings that need to be filed with the probate court.

  • What are the duties of a personal representative?

    A personal representative or an executor of an estate has a number of duties but chief among them are gathering the assets of any particular estate such as bank accounts, brokerage accounts, real estate. The second would be assessing what the debts are, paying those debts, handling the taxes. The third would be to make final distributions to whatever beneficiaries that are either designated in a will or are required through the intestate statute.

  • Must the personal representative post a bond?

    Typically, the final will will designate whether a bond is required or not. Often, you see that the will will waive any bond requirement, but the judge can decide for themselves whether they feel a bond is appropriate for any particular personal representative.

  • Must an executor (personal representative) hire an attorney?

    A personal representative must hire an attorney in order to probate the will in most Florida counties. Every county I’m aware of, the judicial system does not allow a personal representative to represent themselves for the simple reason that the probate process is too complicated for a lay person to go through the court judicial system, and the judges don’t have the tolerance to teach a lay person the law.

  • Is the personal representative entitled to be paid?

    Yes, in the state of Florida, like many other states, the personal representative is entitled to a fee for the services they rendered. Often the PR that is selected in the will is also a beneficiary of the estate and a family member of the person who’s passed away. They’ll wave any fee that they might be able to take, but the law does entitle them to reasonable compensation which is typically around 3% of the total estate assets.

  • If I am named as executor (personal representative) in a will, do I have to serve?

    You do not have to serve as a personal representative or an executor of an estate just because you are nominated in the will. You’re free to waive that responsibility completely. What would happen is the person who would take over is often named as successor personal representative directly in the will, or the court will select a person who they feel is appropriate to take over.

  • Does the person named in the will as executor personal representative have to serve ?

    The person named as personal representative or executor in the will has an option to serve or not to serve. If they make the choice not to serve, they can renounce which is a pleading to the court that they renounced the duty to serve. Normally they’ll consent whoever the family or the beneficiaries they read upon as a substitute personal representative.

  • Does the court supervise the personal representative?

    In the state of Florida generally the probate court does not supervise the daily activities of the personal representative. What incentivizes the PR to act responsibly is that he can be petitioned to be removed by the beneficiaries of the estate and he can be sued personally by the beneficiaries if he fails to do his duties responsibly.

  • Does an executor personal representative get paid?

    A personal representative, or executor, is entitled to a fee under Florida statute and that fee is reasonable. There is a statutory formula for determining reasonableness, which is approximately 3%. Many personal representatives who are family members do not take a fee in order to avoid conflict with the other beneficiaries, but there’s a lot of work to be done and I tell beneficiaries to keep track of their time and make a decision later whether they’re going to take a reasonable fee or they’re going to waive a reasonable fee.

  • Do I need an attorney to handle an estate?

    Yes, in Florida you’ll be required to hire an attorney to represent the person or representative in a state. The county clerks will not work with lay persons to help file pleadings during the probate process.

  • Do beneficiaries have to pay creditors out of their own pocket if the estate is insolvent?

    That depends on if the debt is a secured or unsecured debt. It may follow real property and any beneficiaries that are receiving the real property may be responsible for paying the remaining debt.

Probate Litigation


  • Who is able to contest a will?

    Any person named in the will directly, or any person that is in the intestate beneficiary, which is often a family member of the person who died, has the ability to contest a will.

  • Who and when can someone contest or object to part or all of a will?

    A person can object to a part or all of the will when they are a family member, normally a spouse or child. Grandchildren do it. There is a question about their capacity, there’s a question about undue influence of one or more other people. Again, the best way to avoid these problems is to anticipate them and to document your rationale for what you’ve done in your will or trust.

  • When can a will be contested?

    A will can only be contested once the person who has executed it has died, and then you have a three month window period to contest that will.

  • What is probate litigation?

    Probate litigation is any adversarial proceeding that goes along with the probate process. Typically it’s beneficiaries either fighting each other or fighting the estate due to some provision within the will.

  • What if the personal representative has a conflict of interest?

    In Florida the probate judges will make every effort to respect the choice of personal representative that’s nominated in the will itself. In order to remove a person who’s appointed as personal representative, you would not only have to show that there would be a conflict of interest, but also present evidence to demonstrate how that conflict of interest will interfere with the personal representative’s personal ability to administer the estate.

  • What if someone objects to the will?

    If someone objects to the will, the administration of the estate continues on as normal. It’s just that there can’t be any final distributions to beneficiaries until that contest is settled.

  • What happens if the personal representative fails to perform his or her duty?

    If the personal representative of an estate fails to perform his or her duties, such as by misallocating funds of an estate, oftentimes the beneficiaries will petition the courts directly to remove that person from serving as personal representative, and they can also personally sue the personal representative for any money that they are owed from the estate.

  • What happens if someone objects to the proposed action?

    You’ll have a reasonable time to respond if anyone objects to the probate process. Then, if necessary, you may bring the objection before a judge to decide what the proper action is moving forward.

  • What are will contests and how do I avoid them?

    Will contest are dispute between a beneficiary or a person who wants to be a beneficiary or maybe even a spouse or a child who disagrees with the items that dispositions in the will and the best way to avoid them is to get good legal advice in the preparation of the will to explore the possibilities of will contest and then to document your rationale for your disposition.

  • What are the grounds for contesting a will?

    The most common grounds for contesting a will is lack of testamentary capacity, and undue influence.

  • What are some possible events that can lead to a will or trust being contested?

    Three common scenarios that lead to a will or trust being contested are disinheriting children, illegitimate or non-marital children that are named in the document or leaving a large percentage of your estate to a charity.

  • Is probate or trust litigation expensive?

    Yes, probate litigation can be very expensive. Often, those initial attorney fees will have to be paid out of pocket by whatever beneficiary is challenging and there’s no guarantee those expenses are ever going to be reimbursed from the estate.

  • If I believe the will of a family member is invalid, how long do I have to find a lawyer and raise my claim?

    Generally, you have three months from receiving notice of administration in order to contest the will.

  • I am concerned that the estate administrator is improperly distributing assets. How can I ensure that the estate is being administered correctly?

    The best way to ensure that the estate is being administered correctly is to petition the probate court directly to remove whatever administrator is not doing his job correctly.

  • How can I avoid probate litigation?

    The best way to avoid probate litigation is to contact an estate planning attorney during your lifetime and do proper planning in order to assess whatever risk there might be for probate litigation after your death.

  • Do we need to go through probate if there is a valid and non-contested will?

    Yes, it also depends on how the assets are titled. Any assets that are titled in a decedent’s name solely with no designated pay on death beneficiary, will be required to go through the probate process.

Probate Process


  • Who gets notice of the petition for probate?

    All interested parties get notice of the petition for administration in a probate process. Interested parties to a probate process may include family members, beneficiaries of an estate, or any potential creditors of an estate.

  • Who are the parties involved in the probate process?

    Interested parties to a probate process may include family members, beneficiaries of an estate, or any potential creditors of an estate.

  • Who are the parties involved in the probate or administration process?

    The parties involved in the administration process of a probate proceedings are those interested in the estate. Typically those are the beneficiaries themselves. The personal representative is another party, and they’ll hire an attorney to represent them during the proceedings who will be responsible for filing all the necessary pleadings during the probate process.

  • What is the notice to creditors?

    If a notice that is published in a local newspaper where the decedent resides in order to notify all creditors that the decedent has passed away and if they have any unpaid debts, to file a claim against the decedent’s estate within a time period indicated.

  • What goes on in the probate of an uncontested will?

    The probate process involves a number of steps, but it can be broken down into three main categories. The first category is filing the death certificate, filing any will that’s available, and having the PR appointed for the estate. The second is collecting assets, filing an inventory, handling any debts of the state, and the third phase is finally making those distributions to the beneficiaries that are designated in the last will.

  • What do I need to do to locate creditors to an estate?

    The personal representative of an estate should check the mail of the decedent, go through their documents and desk in their home or their last known residence to try to look for statements or other forms of documents that may lead them to any unpaid creditors.

  • What are the types of probate proceedings?

    There are various types of probate proceedings. The most common would be a formal probate, a summary probate which is for assets valued less than $75,000 and an ancillary probate for a nonresident decedent who died owning assets in the state of Florida.

  • What are the steps involved in probate?

    Depending on the type of probate that is required, it may be necessary for the will to be probated by a personal representative to be appointed to act on behalf of the estate in order to collect the decedent’s assets, pay any creditors, and distribute the remaining assets to the estate’s beneficiaries.

  • The decedent owed me money. How do I file a claim against the estate?

    You would have to file a formal claim against the estate that it’s opened in probate court and make sure to attach evidence of what is owed from the decedent’s estate. Please speak to a competent attorney for more information.

  • My spouse died and left a will leaving his assets to me and my children. Do we have to probate the will?

    You should always deposit the original will with the Clerk of Court in the county where the decedent resided. Whether you have to probate the will or not, depends on how the decedents assets were titled. If they were in his sole name with no designated beneficiary, then you would have to probate the will.

  • Is there a small estate exception to probate?

    Florida allows disposition of personal property without administration for any probate assets that are less than the reasonable funeral expenses and medical bills for the last 60 days as long as the total is less than $10,000.

  • How is the Internal Revenue Service (IRS) involved in the probate process?

    If you have any particular questions about the taxation of an estate I would recommend that you contact an experienced accountant or trust an estates attorney to help direct you through the process.

  • How does the probate process work?

    The probate process can simply be described as the process of clearing title to assets in order to transfer to new beneficiaries. Let’s say your uncle dies. If he died and he had property named in his name alone, in order to transfer it to new people, you need an order from the judge to re-title those assets.

  • How are estate creditors handled?

    Any creditors that file a formal claim against the estate are paid according to Florida statute in an order depending on importance.

  • Do I need to give notice to secured creditors?

    Yes, it is highly recommended that you give notice to secured creditors. If you don’t give notice to a secured creditor, they have a 2 year window period in order to file their claim, which can be a very big problem in the future if the beneficiaries of the estate have already spent the assets.

  • Do I need to file tax returns for the estate?

    The personal representative will be responsible for filing the final tax return for the person who passed away recently, but an estate tax return is only due if there is a federal tax bill. Now in Florida, there’s no state-level death tax, but there still is a federal tax requirement, so if an estate is valued at more than $5.4 million, there is a potential estate tax bill, and then a return would have to be filed.

  • Do I need the original will?

    No, you do not need the original will in order to start the probate process. It is always recommended that you file the original will if you can find it, but you can start the probate process with a copy of the will or with no will at all.

    Wills & Trusts


    • What is the no-contest clause?

      A no contest clause in a will or a trust simply says that if a beneficiary challenges that will or trust, that particular beneficiary will be disinherited completely. A different term for this type of clause is an in terrorem clause.


      The purpose of these clauses is to threaten and intimidate potential beneficiaries into not contesting the will. Many people fear and seek to avoid the possibility of a will contest, which can drag on for multiple years. Defending against these suits can use of much of an estate’s assets. The idea of including a no contest clause is to scare the beneficiary into taking what is left to them in the will and not risk losing it all by contesting the will.


      Florida does not recognize or enforce these no contest clauses in wills. This is a matter of public policy. Section 732.517 of the Florida Statutes states that a “provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable.” A separate statute invalidates no contest clauses in trusts.


      Nevertheless, these no contest clauses still occasionally appear in Florida wills, even though they are unenforceable. Sometimes these are added by attorneys who know that the clauses are unenforceable, but who know that the existence of the clause might nevertheless prevent a will contest by those beneficiaries who do not know that they are unenforceable. At other times, these clauses appear in Florida wills because the will has been prepared by a layperson either drafting it themselves or using legal form creation software.

    • What is a pour-over will?

      A pour-over will is a will that’s made in conjunction with a living revocable trust. A pour-over will is not a stand-alone document but works together with a living revocable trust to effectuate the decedent’s wishes. In Florida, a pour-over will transfers a person’s property and assets that are subject to probate into the decedent’s trust when he or she dies. The name for this process is “funding.” The property that is transferred into the trust is then distributed to the beneficiaries according to the terms of the trust.


      The purpose of a pour-over will in Florida is to make sure that the goals of the will and the trust remain aligned. The will ensures that the personal representative places into the trust any property that is not already in the trust. In a pour-over will situation, the personal representative’s main duty is simply to transfer the property from the estate into the trust. Thus, a single document, the trust, controls all the property so duplicate distributions (made on the basis of both the will and the trust) are not made. The trust document will then instruct the trustee how to handle trust assets.


      A disadvantage of using a pour-over will is that the property that is included in the will must still go through probate. Probate can be time-consuming and expensive. It can take months before the court allows the transfer of property into the trust. In addition, property that passes through probate becomes part of a public record

    • Will I still have control over my property if I have a living trust?

      If you set up a living trust and are one of the trustees, then you have control over your property. As a trustee, you have a hundred percent control over your assets in the trust.


      In a living trust, one person, the “trustee,” holds legal title to property for the benefit of another person, called a “beneficiary.” It is possible for you to be the trustee of your own living trust and keep full control over the property held in the trust.


      A living trust is referred to as “living” because you create it while you are still alive. This is in contrast to a trust that is created at the time of your death according to the terms in your will. The main reason people make a living trust is to spare their families the expense and delay of probate court proceedings after their death.


      Even if you have a living trust, you should still have a will. The will controls any property that doesn’t make it into your trust. If you acquire property after you have created your living trust, for example, but fail to transfer that property into your trust before you die and you do not have a will, that property will be transferred to your close relatives under the Florida intestate statute.


      In Florida, to make a living trust, you start by creating the trust document. It will name you as the trustee and says who will inherit the trust property upon your passing. Then you sign the document in front of a notary public. Then, you transfer whatever property you want to be in the trust to your name as the trustee.

    • Where do I find the original will?

      There is no central place where wills are filed before a person dies. It is a private document until the person who made it has passed away. Ideally, the testator already provided a copy of the will to his or her named personal representative before passing away, but this does not always happen. It is in the best interest of a person close to someone passing away to ask if he or she has made a will and where it is.


      Very often, the original will is found in a safety deposit box belonging to the person who died. Sometimes the original will is held by the law office that drafted the will. But sometimes locating the decedent’s will can take some creative searching. A close relative may need to search through the deceased persons personal records and documents in order to try to locate the name of the decedent’s attorney. Other relatives and friends might be needed to provide ideas as to where the deceased person stored important files and documents.


      After the will is located, it will be filed with the probate court. Once the original will has been filed with the probate court, it becomes a public record and one can obtain a copy from the clerk of court’s office.

    • What property does my will control?

      Your will can control assets that you own in your name alone at the time of your passing. Property that is controlled by a will needs to go through the probate process. The following are a few examples of property that will be controlled by your will: jewelry, a car that is in your name solely, a bank account that is in your name solely, a brokerage account that is in your name solely, and insurance proceeds that are payable to your estate. In order for someone to take control of these assets as a personal representative and to dispose of them and transfer them, that person will need to probate the will, have the will admitted to the court, and get letters of administration as a personal representative to have the power to deal with these assets.


      There are various ways for you to transfer your property outside of your will and the probate process. For example, you could choose to own property with someone else as joint tenants with a right of survivorship. You could make sure you have a named beneficiary for certain insurance policies and retirement accounts. You could retitle certain assets to a trust. All of these options take a certain amount of planning and the consideration of a variety of factors.

    • What makes a will legal?

      A will is legal and valid if it’s been executed with the formalities required of the Florida Probate Code. These formalities require that the grantor, or the person executing the will, needs to sign at the end of the will document. The signature must be made in the presence of 2 witnesses. And these two witnesses must sign the will in each other’s presence. Florida law does not preclude beneficiaries from acting as witnesses. But it can be better if a non-beneficiary acts as a witness to avoid claims that the beneficiary witness improperly influenced the testator.


      These requirements of Florida law regarding wills means that certain types of wills are not valid in Florida. For example, a “holographic will” is a will that is handwritten without any witnesses. Another example of a will that is invalid in Florida is a “nuncupative will.” This is a type of will that is made verbally in the presence of witnesses.


      If a Florida resident dies without a valid will, that person is considered to have died “intestate.” That person’s estate will be distributed by the probate court according to Florida law. Generally, that means that the estate will be divided among the decedent’s closest relatives according to a formula in the statutes. When a person dies intestate and has a surviving spouse and has no children or only children with that surviving spouse, the surviving spouse will receive the entire estate.

    • What is a fiduciary?

      A fiduciary is a person or an entity that is responsible for administering something such as a trust for the benefit of another person.  The people for whose benefit the trust is administered are called beneficiaries.


      There are a variety of roles and individuals who are legally fiduciaries, but when it comes to wills and trusts law, when speaking of fiduciaries, people are typically referring to trustees and personal representatives.


      Florida law imposes a variety of duties on fiduciaries. The most important of these are the duty of loyalty and the duty of reasonable care. The duty of loyalty requires that a fiduciary manages the trust or estate not for his or her personal benefit, but for the benefit of the beneficiaries of the trust or estate. Another violation of the duty of loyalty could occur if a trustee favors one beneficiary to the exclusion of others. The duty of reasonable care requires that the fiduciary manage the assets entrusted to him or her as a reasonably prudent person would, not making wildly unsound investment decisions, for example.


      Beneficiaries typically trust fiduciaries to administer the trust or estate in accordance with the law, the relevant documents (e.g., the will or trust), and good morals. But this trust is not always well placed and sometimes fiduciaries breach their fiduciary duties. Under Florida law, if a fiduciary has breached his or her fiduciary duties, he or she could potentially be held personally liable for those breaches.

    • What is a durable power of attorney?

      To help understand what a “durable power of attorney is,” it is useful to understand what a regular “power of attorney” is. In Florida, as in other states, a power of attorney is a legal document by which one person delegates authority to another person to act on his or her behalf. The person who grants the power of attorney is referred to as the “principal.” The person who receives the authority to act on behalf of the principal is called the “agent.” The amount of authority the principal grants to the agent is determined by the specific language in the power of attorney document. It can be broad or narrow.


      The power of attorney document can be used to grant to another the ability to perform almost any legal act on behalf of the principal that the principal himself or herself could do.  For example, the principal can use the power of attorney document to grant to another person the right to sell his home, have access to his bank accounts, etc.


      A “durable power of attorney” document is one in which the power that the principal delegates to the agent survives even if the principal becomes incapacitated. This is different from the typical power of attorney document, which will become ineffective once the principal becomes incapacitated. The power of attorney document must contain special language that makes it durable. Principals can use durable power of attorney documents to allow their agent to make important financial and medical decisions for them once they have become incapacitated. For this reason, if you are giving someone a durable power of attorney to act on your behalf, it is critical that you choose someone trustworthy.

    • What if there is no will?

      If there is no will at all, the estate is said to pass intestate. In this situation, Florida law has default rules that govern how an estate will be distributed.


      Typically, if there is a surviving spouse and that spouse is the parent of all the decedent’s children, then that spouse will receive 100% of the distributions. This means that the children from that marriage will receive no direct distributions from the decedent’s estate.


      If it is a non-nuclear family, meaning the decedent had children with multiple partners, then typically 50% of the distributions will go to the surviving spouse, 50% to be distributed among all the decedent’s children.


      While we need not go into all the details and possible scenarios here, the Florida intestacy statute does provide default rules that govern distributions for intestate estates in virtually every conceivable family situation. Of course, the distributions that the Florida intestacy statue requires may be very different than what the decedent would have wanted, which is why it is so important to have a will so that your estate can be distributed as you want.


      If there is a will, but the will does not govern all of a decedent’s assets, then those assets governed by the will are distributed through the probate process and those assets that are not governed by the will are distributed according to the intestacy statute. This statute designates certain people as heirs and also specifies how much of the intestate estate will pass to those heirs.

    • What if I have more children after writing my will?

      If you have more children after you have prepared a will then you need to review the will with an attorney and determine whether the will is silent on the issue or not. A lot of wills say, “I give my assets to my children equally.” That language would include both prior children and children born after the will was prepared.


      One very important thing to understand is that the will governs only probate assets. Many times a husband and wife will hold assets jointly, especially key assets like a family home or savings account. When one spouse dies, the remaining spouse becomes full owner of the assets that were previously held jointly. So, those assets are not governed by the will at all and what the will says a subsequently born child will receive becomes irrelevant (at least for those assets).


      Some wills don’t address the issue of distributions to subsequently born children at all. In that case, a child born after the will take under the loss of intestacy. But then it can get somewhat confusing because if it is a situation with one marriage and one set of children, under the laws of intestacy, it all goes to the surviving spouse.


      In situations where there are children born after a will has been made, representation by an experienced attorney is more important than ever.

    • What does it mean to fund a trust?

      When a trust is set up, the primary thing to do is to fund it. You need to transfer the assets into the name of the trust. For an example, a bank account should be retitled from Mr. Jones to Mr. Jones, trustee of the Jones trust. You need to transfer or fund the trust with all your assets in order to avoid probate for those assets.

    • What does a will usually contain?

      A will normally contains several important elements. One, it appoints a personal representative or a successor personal representative to do the duties of a personal representative. Two, it directs the disposition of tangible personal property, like all the assets in your home, your jewelry, your collectibles, your heirlooms, and it also directs the disposition of your other assets. If you don’t do it asset by asset, there’s usually a residuary clause that says, “I leave the rest or remainder of my estate to the following people,” normally a spouse. If no spouse, the children. If no children, they name relatives or charities.

    • What do testate and intestate mean?

      When an estate passes testate, this means that the person died leaving a final will. When the estate passes intestate, that means they died without a will.

    • What benefits does a trust offer?

      A trust offers several benefits. The primary one is it’s a private document. It’s normally not recorded in any public record such as a Probate Court. It is confidential among the settler and his beneficiaries. Another benefit is that upon disability or incapacity he’s set up his successor trustees to manage his assets to pay his bills and handle his estate after he’s gone. Another benefit if you’re fortunate to be in a taxable situation you need trust in order to maximize the unified credit deduction amount and other tax planning opportunities available to wealthy people.

    • What are trusts?

      Trusts are a legal entity similar to a partnership, similar to a corporation. They have a settler who creates the trust and transfers assets into it. They have trustees who control the assets and administer it during the settlers life or upon death, and there are named successor trustees and then there are named beneficiaries. Trust is a legal entity that can own assets and follows the directions that the settler sets forth in his trust documents.

    • What are self probating wills?

      Self-probating wills are basically wills that are executed in conjunction with a self-proving affidavit. This affidavit simply says that during the time of executing the will, the will was executed with all the formalities required of the law. If you go to probate a will that does not have this self-proving affidavit, you have to contact the original witnesses in order to get the will into the probate process. If you have the self-proving affidavit, you do not have to contact the witnesses in order to get the ball rolling.

    • My parent died with a will and disinherited me. Can my parent do that in Florida?

      Yes, parents are free to disinherit their children in Florida. The only person you’re not allowed to completely disinherit is a surviving spouse, but children are not entitled to inherit from their parents.

    • Is a handwritten will valid?

      A hand-written will is valid if and only if two witnesses are present when you sign it, and they signed it in your presence. If you have a will that is signed by the decedent only, it’s called a holograph will, and they’re not enforceable in Florida. You have to have the two witnesses sign in the presence of the decedent signing. One of the big mistakes is the decedent will do a hand-written will, or type-written on his computer, print it out, sign it, and then go see a neighbor, the two neighbors, and say, “Here, sign here. This is my will.” It’s not valid because they have to see the decedent sign the will and be in his presence.

    • How often should my will be reviewed?

      A will should be reviewed periodically after certain events have occurred:, either there’s a change of law so you need to see an attorney on a regular basis to see if there’s been any changes of law, if there’s been a financial change in your life, assets go up or down or you’ve retired or assets have been disposed of and new assets acquired, if there’s been a change in your family, one of your children have died or a parent gave you an unexpected inheritance. Any of these financial or family matters that change your disposition should be reviewed.

    • How long is a will valid?

      A will is valid until the decedent dies at which point it now has the power to direct the disposition of probate assets. Any assets in the decedent’s separate name will now be subject to that will and the main thing is that the will has no power until that. It’s valid but it has no power until death and that’s the power to control the disposition of decedent’s sole assets.

    • How long does it take to settle a trust and what can I do if it is not done in a reasonable amount of time?

      The length of time it takes to settle the trust really depends on the provisions of any particular trust and what assets you’re dealing with. If the assets need to be liquidated, it can really take up to six months. If it’s a standard revocable trust making outright distributions, it can take much less time. The trust document can also lock up the assets for a very extended period of time and then you would have to consult with the trustee directly.

    • How does a revocable living trust avoid probate?

      A revocable living trust avoids probate because the assets titled in the name of the trust are controlled by the trustees, the co-trustees, the successor trustees so that when a settler dies, there is no need to go to the court to ask who owns the assets. The assets are still controlled and under the direction of the trustees.

    • How does a living trust avoid probate?

      A living trust avoids probate because all the assets inside the living trust are titled in the name of the trust and upon the death of the settler or grantor there’s no question of ownership. The successor trustee or co-trustee can continue to manage and distribute those assets per the trust instructions. There’s no requirement for a court probate supervision.

    • How do you prove a will?

      You prove a will by having it notarized properly under Florida law. Florida law provides that to prove a will that the notary does an affidavit which the decedent and the two witnesses all swear before the notary that they have previously signed the will in the presence of the two witnesses, and the two witnesses sign in the presence of the testator or testatrix, and then the notary puts a separate affidavit on the will. The advantage of self-proving is that when the will goes to court or goes to probate after the decedent’s death is that the witnesses don’t have to sign a consent or appear before the court to say that they were present during the signing of the will.

    • How can the validity of a will or trust be determined?

      The validity of a document is determined by whether it’s executed properly. In order for a will or a testamentary revocable trust to be executed properly it must simply be signed by the grantor at the end in the presence of two witnesses. Then those two witnesses must sign in the presence of each other.

    • How can I find out if there was a will?

      You can find out if somebody has a will several ways. One, the principle way is to contact the probate court in the county were the decedent resided and ask if there’s an open probate and if so, can you get a copy of the will. If a will has not been filed yet and you want to be kept alert to the possibility, you’d hire a lawyer and file a caveat so that subsequently filed wills you’d get a copy of. If there’s no will filed at any time, then you need to ask a family member or a friend if there is a will. The problem is if you’re not a named beneficiary or an heir at law, like a child or a spouse, you’re probably not entitled to a copy so don’t expect one.

    • Does my will have to be notarized?

      A will does not have to be notarized in Florida to be legal. The legal requirements are that the will is signed by the decedent, as the testator for a man, a testatrix for a women, has to be signed by them at the end, and witnessed by two witnesses. The three people who sign, the decedent plus the two witnesses, have to sign in each other’s presence. They actually have to see each other sign the document. There’s no requirement for a notary.

    • Does it really take less time to settle an estate in which a living trust was used rather than just a will?

      Yes, a living trust generally helps to avoid the probate process, so it’s going to shorten the length of the probate proceedings substantially.

    • Does a trustee of a trust have to provide an accounting?

      The trustee of a trust does not typically have to provide an accounting, the trust document itself will specify whether an accounting is demanded. Beneficiaries of a trust can request an accounting to a trustee, and that trustee will often oblige.

    • Do living trusts go through probate?

      No, if a living trust is set up properly, it will help to avoid the probate process.

    • Do I have to be in my home state when I make my will?

      If you’re in another state and you want to make a will that’s different from the state you normally reside in, yes, you can have an attorney prepare a will, say, a Florida attorney prepare a will, and you can sign it while away on a temporary job or at school in another state. The will just needs to be witnessed properly and hopefully notarized by a local notary.

    • Can someone quitclaim his property to me instead of leaving it in his will?

      A person can quitclaim property to a beneficiary through a deed and there’s two deeds where this can be accomplished. One is a deed where the grantor retains a life of state and names the beneficiary as a remainder one. Another one is to name the beneficiary as a co-owner currently with the current owner. You should seek the advice of an attorney before you name a beneficiary a co-owner today because you may bring in his creditors, you may bring in a marital dispute. There’s advantages and disadvantages of naming a beneficiary a co-owner with right of survivor-ship.

    • Can I specify that certain people, like a brother or sister, should never receive any of my property?

      There are family members such as brothers and sisters, nephews and nieces who have an expectation of inheritance. You can specify that you’re not providing for them in the will or a trust. The important thing is to again discuss it with a lawyer. Brothers and sisters are not normal heirs to an estate. It’s spouse and children. So if you have no spouse and children, and brothers and sisters have an expectation, that needs to be documented, why you put in one brother or sister and not another.

    • Can a will be changed or revoked?

      A will can be changed or revoked at any time during the decedent’s remaining life. You would make a change to a codicil and the codicil changes must be witnessed and the same formalities as the original will. I have many people who believe they can just cross something out in a will and initial it, and that’s a codicil, and it’s not. It doesn’t have to be a separate writing, but every change in the will has to be a signature of the decedent and two witness signatures, all done a the same time. You can revoke a will through a writing, signed properly, or you can just physically destroy the will.

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