Commonly Asked Estate Planning Questions and Misconceptions

Provided ByLegacy Law Associates, P. L.

Q: I just moved to Florida, do I need to update my will or trust?

When you cross over the state line to Florida, your out-of-state estate planning documents do not become void. Florida will recognize your documents provided they were prepared in conformity with Florida law. However, all planning should be regularly reviewed and updated. Laws change, families change and assets change. If your estate plan has been left unchanged in a safety deposit box for years, you can’t expect things to work out the way you want. Use your move to Florida as an opportunity to update your planning.

Q: If I die without a will, does my property “go to the state”?

No, if you die without a will or trust, the government does not “swoop in” and take your assets. This is a common misconception creating fear for many people. However, dying without a will (dying “intestate”) has many negative consequences. The human toll may be the biggest cost. If you die without an estate plan, Florida law provides one for you. Florida law will dictate who will administer your estate, how it will be handled and who will inherit. Most likely, it will not work out the way you wanted or the way you could have planned. Opportunities to protect and provide for your loved ones may be lost. Many families end up divided when disagreements arise over your intentions. Further, you may lose the opportunity to save your loved ones substantial administration expense and estate taxes.

Q: I have remarried. Upon my death, how can I provide for my new spouse, and at the same time, protect my own children?

Planning become more important in second marriages. Unfortunately, many people fail to plan or plan to fail to update their planning causing their children to be disinherited. Tremendous anger and family conflict can result. Also, recent changes in Florida laws will have major impact on second marriages. Don’t let procrastination destroy your family. Develop a plan that will work well for you, your spouse, and your children.

Q: Do I need to do much planning since all my children are “good” kids and get along?

As you know, bad things do happen to good people, and good families. You probably would not want your child to receive an outright inheritance during the middle of a divorce or a lawsuit. Some good kids are influenced by “bad” spouses. Even good kids can forever hold bad feelings with each other over inheritances. There are estate planning tools that can help.

Q: I am a widow(er), can I avoid probate by listing my child(ren) as joint owners on my accounts or property?

This seemingly simple shortcut can sometimes be a costly mistake. Joint ownership between spouses may make things simple when one dies but what happens to the plan when both die? Naming a child as co-owner on assets may be helpful but most people fail to realize that by doing so, your child’s creditors will have access to your assets. Joint ownership planning may avoid probate, but many opportunities are lost to protect you, your spouse and your children from disability, creditors, divorce, or just bad decisions. Additionally, you may lose the opportunity to plan how, and by whom, your assets would be handled should you become mentally incapacitated.

Q: Do I need a will or a trust?

The answer is not dictated simply by the size of your estate. It depends on your planning goals. A will is testamentary, in other words, the instructions are not put into effect until you die. On the other hand, a revocable living trust provides instructions not just for “when you die” but “while I am living”. For example, if you become mentally incapacitated, your trust can provide your detailed instructions on who is in charge, and how they are to handle your affairs. Without these instructions, these decisions may be made for you in a guardianship court. Upon death, a trust created the opportunity to pass assets to your loved ones protected from creditors, divorce, and other bad things that can happen to good people. A properly drafted Will may work but trust based planning can accomplish so much more. Also, trust administration is generally much less expensive than probating a will. Trust administration is a private process. Probate is a public court process.

Q: If I set up a trust, do I lose control of my assets?

No, quite the contrary. While you are alive and well, you remain in complete control of your assets, you do not need a tax ID number for your trust, you can amend or revoke your trust at any time. Even in the event of your later incapacity you will have retained “control” by making advance decisions as to who will act fo you and how your assets will be managed.

ABOUT US: The attorneys of Legacy Law Associates, P. L. limit their practice to estate planning and administration. We are located at 313 S. Palmetto Avenue, Daytona Beach, Florida 32114. If we may be of assistance, or if you would like more information, please call: (386) 252-2531.

The hiring of a lawyer is an important decision that should not be based solely on advertisements. Before you decide, ask us to send you written information about our qualifications and experience.