Frequently Asked Questions

Having a valid, updated Will in place is imperative in order to ensure that your wishes are carried out upon your death and to designate a personal representative.  A Will instructs your personal representative how to distribute wealth to your heirs.   It requires registration with the county court, filing fees, accounting, and reporting.  The probate process can take time and be expensive.  Your wealth is distributed upon your death.   Conversely, a Trust allows you to distribute wealth over time, avoid the probate process and protect your assets from creditors or predators. 

It is possible to avoid the probate process by distributing your assets while you are living.  If you identify beneficiaries on your policies and accounts, add your spouse or children to the deed of your home and title your automobile appropriately, you may be able to avoid the probate process entirely.  The key is to make sure that no assets remain in your name alone.  Keep in mind, if you add an owner to your property or account, while you are alive, that person has just as much of a right to it as you do and you cannot close or sell without their consent. 

A Durable Power of Attorney identifies an agent to act on your behalf while you are still alive and is ineffective after your death.  A Will is only effective after your death. 

A personal representative is an individual assigned by the court to execute the wishes of the deceased in accordance with a Will or with state law.   A Will should identify the preferences of the deceased in filling this role.   Florida requires that the individual not have a felony on their record, not have been convicted of charges of abuse, be 18 years old or older and reside in Florida.  They do not need to be a resident if they are related to the deceased.  A spouse has priority, followed by adult children, parents and other relatives. 

If your Will is still accurate and it complies with Florida statute, it is not necessary for you to have a new will drafted, however, you may want to have new documents executed to avoid complications upon death.    If you wish to make changes, you should have a new Will drafted in Florida.  If your Will is deficient in any way, you will want a new Will.

If your loved one is a resident of another state, you  must file probate in that state.  If they own property in Florida, you may also be required to file Ancillary Administration here in Florida.

Your Trust will include many things, among them, your intent to fund it.  Generally the Trustee (you in a Living Revocable Trust) will identify assets that are to be transferred to the Trust.  Not all assets must be transferred.  However, those that are not will be inherited based on ownership, beneficiary or through the probate process if they are in your name alone.   You may wish to transfer the title to your home into a trust, change the beneficiaries of your life insurance policies to the Trust, name your Trust as your beneficiary on an investment plan or 401K or create a bank account in the name of the Trust.  

If you are admitted to the hospital, you will want to have a healthcare agent assigned to make decisions for you in the case you are incapacitated.    You will also want to make your wishes known with regard to artificial life support under certain circumstances such as a persistent vegetative state or a coma.  Without providing this document, the hospital is uncertain of whom to rely upon to make your decisions and it could result in decisions that would be against your wishes or result in a delay in decision making. 

You must first decide what type of business structure you will establish.   You will then need to implement documents to support the business, such as an operating agreement which defines terms and conditions and establishes procedures for admitting new members, voting, disassociation of a member or even death of a member.   You will need an EIN number from the IRS, a registered agent that is available to accept service of process during regular business hours and you will need to file Articles of Organization with the Florida Department of State. 

Once a Personal Representative is named to the Estate by the court they are responsible for gathering up and selling assets, setting up a bank account, collecting insurance proceeds, accessing other accounts, paying all debts and distributing remaining assets to the heirs.  

The Attorney's role includes making sure all court documents are filed, advertising the estate as necessary and assisting the PR in performing their role.  The Attorney may also perform other functions, if requested.   This might include assisting or coordinating financial planning, completed estate tax returns or handling probate disputes or litigation. 

An Executor and a Personal Representative have basically the same job, however, the Executor is named in a Will and must carry out the activities of the estate in accordance with the terms of the Will.  The Personal Representative is assigned by the court and must handle the estate in compliance with state rules. 

If the decedent owned a vehicle that has no outstanding loan against it, you may submit an application to the Department of Motor Vehicles to transfer the title if the application is accompanied by the original title, a death certificate, an affidavit stating that there are no debts outstanding, and an affidavit stating that the heirs agree on the disposition of the vehicle.   See Florida Statute 319.28.

If you add another individual to your deed with a right of survivorship you will be able to continue receiving the benefits of the homestead exemption provided you still have a legal right to reside in the home and you continue to meet the residency requirements.

Yes, your taxes will be recalculated at the end of the year of the death of the owner.  If you meet the homestead requirements at that time, you may apply yourself.  Only the surviving spouse and a dependent will be entitled to keep the homestead exemption of the deceased.