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Estate Planning FAQ

Common Questions About Estate Planning

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Why do I need a will?
Have you ever thought of what would happen to your property and your estate after you pass? With a will you can pass down property to your loved ones via a written set of instructions and appoint who you want to act as your Personal Representative (Executor) to administer your estate. With a will you can select specific items of your real or personal property that you would like passed down to your heirs, or beneficiaries, rather than have Florida Statutes dictate the amount of property to be bequeathed and to whom (Intestate Succession). By executing a will, you may also be able to avoid unwanted family litigation over who gets what property after you pass as your wishes are clearly defined.

Can I create my own will or should I have an attorney draft one for me?
Many people wonder if a self-made will is legally enforceable in court. The answer is possibly, if all the requirements of state law are met. One thing that most people don't understand is that estate planning law is complex in nature and if your legal document is not worded properly or expresses ambiguities, your will could be INVALID or cause litigation amongst your heirs. It is always best to have an experienced estate planning lawyer draft your will to ensure that there are no ambiguities in wording and that the formalities for executing a valid will comply to Florida Law.

How frequently should I update my will?
If you have already created a will, it is important that you have it reviewed every 5 years or after any major life changing or financial event. If a new child or grandchild is born, someone gets married, a family member gets divorced or a loved one passes, that is the time to discuss these matters with your attorney and make appropriate changes to your estate planning documents. Also, sometimes changes in the law require that your Will be reviewed and appropriate revisions made to keep your estate plan up-to-date.

What happens if I die without a will?
If you die without a will, it is referred to as "intestate succession." What this means is that if you were to die without having a validly executed Will, the State of Florida, through its Intestate Statute, will dictate who gets what, how much and when. This can become complicated if your surviving spouse's or your descendants are not also your surviving spouse's descendants. Without having a Will, your last wishes may not be followed.

What is the purpose of estate planning?
Writing out an estate plan can help you and your family in attaining peace of mind that your affairs will be in order so that your estate descends to those of your loved ones you intended to benefit. Not only does proper estate planning prepare you for the inevitable, but it can also provide you and your family with opportunities to reduce or eliminate federal and/or state estate taxes, and even provide a shield around your assets from creditor attack using tried and true asset protection planning techniques.

Why should I create a trust?
Many people use trusts to help them preserve their assets for the spouse, children and future generations. Creating a trust can help you keep your matters private (trusts do not become a matter of public record like wills do), while also saving time and money because the probate process (court proceedings) can be totally circumvented. Many people have misconceptions regarding a Trust that only "wealthy" people need a Trust. That is not the case. Anyone owning assets who might be vulnerable to creditor attack should consider a Trust. As mentioned above, most trusts can be structured to provide "protection" of your assets from creditors of your beneficiaries (such as in the case of bankruptcy, divorce, lawsuits, etc.) Aside from avoiding probate, a trust can also eliminate the need for guardianship(s) of the property of you, your spouse and/or your minor children.

Why do I need a Durable Power of Attorney?
If you ever become incapacitated, then a Durable Power of Attorney entrusts another individual, your Agent (whom you appoint) to make financial and medical decisions on your behalf thereby avoiding the necessity of going to court and subjecting yourself to an incompetency hearing to control your medical care and finances. So when you are unable to make decisions for yourself, you know that those decisions will be taken care of by someone you have delegated and have trust. If you also have a Revocable Trust, your lawful Agent can exercise his or her powers to fund the Trust, with your named Trustee(s) managing your property.

How does the probate process work?
The process of probate involves the court appointing Personal Representative(s) (same as an Executor/Executrix) whom you have named in your Will or if you do not have a Will, who the court appoints as your Personal Representative, to take control of your property. Probate is a state court proceeding designed to transfer legal title to your property when you pass; that is what probate is all about. Once the appointed Personal Representative(s) takes control of your assets, there are several steps required by Florida law. Appraisals are necessary for your probate assets which must be inventoried and filed with the Court. All existing creditors must be notified that an estate proceeding has been opened requiring them to file a claim against your estate. Before any distributions can be made from your estate to your beneficiaries, all creditor's claims (including federal estate, gift and income taxes) must be satisfied or compromised. Having an attorney oversee the probate administration process not only helps make matters run more smoothly, but ensures that all requisite pleadings are timely filed and that your assets are distributed to your designated beneficiaries in a timely manner.

Should you have any questions regarding your estate plan or any other issues related to Living Wills, Health Care Surrogate Designations and Medical Power of Attorney, Pre-Need Guardian Declarations or Durable Powers of Attorney, please do not hesitate to contact the offices of Howard J. Wiener & Associates, P.L.

Howard J. Wiener & Associates, P.L.
Palm Beach Tax & Estate Planning Attorney
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