Since 1996, attorney Weiss has been advising individuals and families in estate planning, probate and tax matters in the Northern Palm Beaches and throughout South Florida. These are the most frequently asked questions he hears from clients.
If I am putting all my major assets into a revocable living trust, do I still need to have a will?
The answer is yes. While the revocable living trust is often an excellent vehicle for disposing of your assets without the requirement of probate administration, the trustee can only distribute assets that were properly placed into the trust. Having a “pour-over” will makes sure that any assets you own at your death that were not placed into the trust will be marshaled and “poured over” from the will into the trust. A revocable living trust alone is not capable of marshaling assets.
There may be other important reasons to have a will, depending upon your specific needs and goals. For instance, you may desire a will in order to name a personal representative of your estate, to name a guardian for any minor children, express funeral/burial instructions, or to make specific bequests of certain property to family, friends or charities.
What is the spouse’s “elective share” and how does it impact estate planning in Florida?
The surviving spouse of a decedent who died domiciled in Florida has the right to a share in the deceased spouse’s estate amounting to 30% of the net value of all property of the decedent, wherever located, including property held in the decedent’s own name and non-probate property. This is called an “elective share” because it is up to the surviving spouse to choose or “elect” whether to exercise this spousal right, or instead to agree to take whatever is provided under the terms of a will. A surviving spouse is entitled to the full elective share under Florida law regardless of the length of the marriage.
What is a “Family Limited Partnership” and why is it used?
A Family Limited Partnership (FLP) is a legal entity often used by families to accomplish estate planning, tax planning and non-tax objectives. The FLP can own, manage and convey real property or other assets. The general partners manage and invest the property and assets of the partnership, while the limited partners have less control over the assets but can be given a larger share or interest in the partnership. Typically, senior family members will take the role of general partners. Property can pass to the younger generations outside of probate, often with more favorable tax treatment. The use of a Family Limited Partnership can accomplish both tax and non-tax estate planning objectives.
Is it possible to avoid probate altogether?
Probate is an administrative process to wrap-up the decedent’s affairs with oversight by the court. With proper planning, it is possible to avoid probate. The use of trusts or other forms of ownership can be used to avoid probate. If the estate consists solely of exempt personal property and non-exempt personal property with a total value not greater than $10,000 (the amount of preferred funeral expenses plus certain reasonable and necessary medical and hospital expenses), it is possible to close the estate without conducting any probate administration. For estates valued at $75,000 or less, it is possible to conclude the estate with an abbreviated summary administration. This summary administration proceeding may also be available if more than two years have passed since the decedent’s death, and the will does not direct that a formal administration must take place.
Generally, some type of probate administration is advisable. One goal of estate planning is to minimize the time and expense of probate, and to shield the details of the estate from the prying eyes of the public. Even when a formal administration is required, careful estate planning will have removed most of the major assets from the probate estate.