Frequently Asked Questions
When a decedent establishes a Revocable Trust during their lifetime, and subsequently dies, the Successor Trustee makes distribution of the Trust assets in accordance with the Trust Agreement. If you create a Revocable Trust and properly fund it by re-titling your assets in the name of the Trust, then your estate will not be subject to a probate proceeding.
Additionally, the Successor Trustee may pay any enforceable claims of the decedent’s creditors and any federal estate taxes payable from the Trust assets. All tasks which would be performed by a Personal Representative named under a decedent’s Last Will and Testament are performed by the Successor Trustee and generally, there is no need to file any documents with the Clerk of the Court, other than the Notice of Trust.
It is preferable to have a will. A will advises every one of your final wishes as to the disposal of your assets upon your death. Merely telling your family members how you would like your assets distributed after your death is not sufficient. Unless you have a Last Will and Testament drawn up by a qualified attorney familiar with your financial situation or family situation, then, when you die, the State determines who receives your assets and in what amount.
When you pass away without a Will, ALL of your assets will need to be either liquidated by your personal representative, including any art collections, coin collections, jewelry and other items of personal property. Additionally, any items determined to have no monetary value must be disposed of.
A Will from another state is considered a foreign Will. A foreign Will may be admitted to probate. However, if you have moved to Florida and intend to make Florida your permanent residence the it is advisable to execute a Florida compliant Last Will and Testament.
Probate is the process by which a decedent’s assets are distributed by direction and Order of the Court either in accordance with terms of a person’s Last Will and Testament or, if a decedent dies without a Will, in accordance with Florida Statutes. When an individual passes away with assets titled in their name such as a bank account, securities, real property, etc., the only way to transfer these assets to the appropriate beneficiaries is through the probate process.
There are two types of probate proceeding which are determined by the value of the decedent’s assets and whether or not they died with outstanding financial obligations (creditors). The decision to select the appropriate proceeding is based on a case by case analysis.
It is important that your loved ones be aware of your wishes when it comes to medical choices in the event you are unable to make these decisions yourself. Advanced directives are invaluable to the individual appointed to make such decisions on your behalf via a Durable Power of Attorney for Health Care, as well as a Living Will as it may pertain to end stage life decisions.
Additionally, if you are unable to act on your own behalf due to illness or unforeseen circumstances, it is important to have a Durable Power of Attorney appointing an individual to act as your attorney-in-fact in your place and stead. The individual will be given only those powers you desire them to have, which may include applying for Medicaid and Veteran benefits, managing your finances, and performing any other acts in accordance with your wishes.
NO. This is an area of the law that is greatly misunderstood. Many people believe they must "spend down" their assets before they can qualify for Medicaid benefits. Florida is a liberal state when it comes to Medicaid planning. We have numerous planning opportunities available to preserve your assets. We specialize in Medicaid planning and would welcome an opportunity to discuss your options.