LAST WILL AND TESTAMENT

 

A will, also known as last will and testament, is a written document which directs the disposition of property owned by a person (called the testator) upon his or her death. Florida law requires that the testator must be at least 18 years of age and of sound mind when signing a will. Furthermore, a will must be witnessed and notarized in the special manner provided by Florida statutes.

 

At a minimum, your will should designate a personal representative (commonly known as executor) to manage your estate after death, as well as identify the beneficiaries of your estate, and what assets or shares of the estate each beneficiary is entitled to receive. The personal representative named must qualify for appointment under Florida law, and may be either an individual or a bank or trust company, subject to certain limitations. Any devise, or gift, that involves specific property should be carefully drafted to avoid violating Florida restrictions on devise, especially if the decedent owned homestead real property at death.

 

Additionally, though not required, a will may include provisions for appointing a guardian of minor children, as well as selecting a trustee to manage such beneficiaries’ share of the estate. Other provisions may include the making of charitable gifts, designating tax burdens of the estate, and specific instructions for the handling of bodily remains.

 

By having a will, a person can decide who inherits his or her property and who will manage the estate. If a person dies without a will, the court will make these decisions and administer his or her estate according to Florida laws of intestacy. Therefore, if you die without a will, the inheritance statute decides who gets your assets.

 

 

It is recommended to have an attorney licensed in the State of Florida prepare and execute your will. Having an untrained person prepare a will may result in a failed or invalid devise, and possibly having your property distributed according to Florida law rather than how you desire. Failure to follow the exact formalities required by Florida law for the execution of a will can result in your will being invalidated and unable to be admitted by the probate court.

 

No will is “simple” given that each person has a unique set of circumstances. Your attorney will draft a will that best accomplishes your needs and goals within your budget, allowing for the various contingencies which can arise with probating a will.

 

LIFE ESTATE DEED (aka “Ladybird” deed)

Another commonly used tool for estate planning is the enhanced life estate deed,also known as the ladybird deed. With this life estate deed, the grantor can give to oneself a life estate in real property he or she owns, that will then pass to whomever he or she desires upon death (called the remainderman). The ladybird deed prevents the need for real property to pass through a probate proceeding since it passes by operation of law to the remainderman upon the death of the life estate grantor.

 

When properly drafted, your life estate deed will allow you to retain complete control over your real property while living, including the power to sell, transfer, or mortgage the property during your lifetime.

 

The cost of preparing a ladybird deed is relatively inexpensive compared to the need for a probate proceeding to transfer real property. Your attorney at Hartbrodt Law will draft your life estate deed with proper care, and ensure that your deed is witnessed, executed, and recorded, in accordance with Florida law.

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REVOCABLE LIVING TRUST

A revocable trust is a document (the “trust agreement”) which provides for the creator (called the “grantor” or “settlor”) to manage assets which are placed into the trust while he or she is living, and then distributes the remaining assets however desired upon death. The person responsible for the management of the trust assets is the “trustee.” You can serve as trustee, or you may appoint another person, bank or trust company to serve as your trustee. The trust is “revocable” in that you may freely modify or terminate the trust during your lifetime, as long as you are not incapacitated.

Although the upfront cost is more expensive than a simple will, the benefits of creating a revocable trust are great. First, a revocable trust allows for the disposition and management of property in the trust after death without the need for court supervision. Thus, it allows the trust assets to be kept private rather than a matter of public record. Furthermore, setting up a trust can prevent the need for having a court appointed guardian in the event of incapacity, as a successor trustee would be able to stand in to administer the assets in the trust. It is important to note that a trust only allows for the administration of property placed into the trust. Therefore, a will and/or probate proceeding may still be necessary if a person dies owning other assets individually which have not been placed in the trust.

 

Your attorney at Harbrodt Law will help prepare your trust, and/or will, if needed, in a manner that best ensures that all assets (whether individually owned or held in trust) are properly disposed of according to your intended goals and desires.

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