Frequently Asked Questions on Florida Probate, Guardianship and Estate Planning

What is a Durable Power of Attorney?
This is a written document in which an individual designates another person to make financial decisions in the event that the individual becomes incapacitated. Each state has separate statutory definitions and requirements regarding Durable Powers of Attorney.

What is a Medical Power of Attorney?
Also known as a Designation of Healthcare Surrogate, this is a written document in which an individual designates another person to make health care and health-related decisions in the event that the individual becomes incapacitated. Each state has separate statutory definitions and requirements regarding Durable Powers of Attorney for Healthcare.

What is a "Executor"?
Referred to as a "Personal Representative" in the State of Florida, an Executor is a person appointed by probate court to manage your estate when you die. The executor collects and distributes your property and pays off any debts according to the terms of your will or the laws of intestacy if there is no will.

Must the Personal Representative (Executor) hire an attorney and who pays the attorney's fees?
Most people find that it is more efficient and less stressful for them to engage the services of experienced probate counsel to assist them with the probate of a loved one's estate. It has become a standard practice for personal representatives to retain the services of an attorney. The attorneys' fees are paid by the estate, not the personal representative..

What is a "Fiduciary"?
A Fiduciary is a person, corporation, or association that is legally responsible for the management, investment, and distribution of funds of another.

What is a "Living trust"?
A Living Trust is a revocable trust established during a grantor's lifetime to provide for the placement of some or all of the grantor's property during his/her lifetime and how such property should be distributed upon death.

What is a "Living will"?
A Living Will is a binding legal document that declares what your wishes are regarding the use of life-sustaining treatment if you should become terminally ill or permanently unconscious. Each state has separate statutory definitions and requirements regarding living wills.

What is a "Power of Attorney"?
A Power of Attorney is a written document that allows one person to act on behalf of another. Each state has separate statutory definitions and requirements regarding Powers of Attorney.

What is "Probate"?
Probate is the legal process of administering an estate. The probate court's task entails determining the validity of any wills presented, appointing an executor (executors are referred to as "personal representatives" in the State of Florida), making sure that all proper notices are sent to interested parties, ensuring that valid debts are paid and certifying that the remainder of the estate is distributed to the proper beneficiaries. If a person dies with a will, the estate assets will be distributed in accordance with the terms of the will, and the court will usually appoint the personal representative named in the will. If a person dies without a will, state law dictates the beneficiaries of the estate and the appointment of the personal representative..

What assets are subject to probate?
All assets owned by the decedent at the time of death are subject to probate if they are not held in a form which spares them from the probate process. For example, in instances of real estate or bank accounts held in "joint tenancy" or real estate or bank accounts held by a trust or "transfer on death accounts" those assets are not subject to probate and they pass outside of probate without court supervision. Similarly some assets that pass by means of a beneficiary designation such as life insurance or retirement accounts may also avoid probate if the beneficiary is not the estate of the decedent.

Who is responsible for paying estate taxes?
While most people are not aware of it, both the federal government and the State of Florida collect estate tax on estates which surpass the exemption amount (this amount has changed significantly over the years).  If an estate has a value over the exempt amount, the estate must file an estate tax return with the IRS. Typically the assets of the estate are used to pay estate taxes.

What is a "Trust"?
A trust is a legal agreement in which a grantor conveys property to a fidicuary, the "trustee," to control the disposition and distribution of assets based on the wishes of the grantor. Assets which are placed into a trust pass outside the grantor's estate, thereby allowing the avoidance of probate proceedings to transfer assets after death. There are many different types of trusts, some are revocable, some irrevocable. Some are set up during a person's lifetime, and they are referred to as "Living Trusts." Some are set up in wills and take effect upon death. These are known as "Testamentary Trusts." Some trusts are set up to avoid estate taxes and creditor claims, but not all trusts avoid taxes or creditor claims.

What is a "Trustee"?
A Trustee is a person named in a trust document who will manage the property owned by the trust and who will distribute the trust income or property according to the terms of the trust document. A trustee may be an individual or an organization.

What is a "Will"?
A will is a written instrument which directs the distribution of assets upon death. There are formal requirements for a legal will, which vary according to state. Wills can be changed by codicil or revoked at any time prior to death. The main advantage of preparing a will is that it allows you to decide who will receive your property, instead of leaving it up to the laws of the state. You can also create a trust in a will (called a testamentary trust) which can direct certain terms under which assets are to be distributed, for example, that until a beneficiary attains a particular age, his or her portion of the estate shall remain in trust.

What are the benefits of executing a will?
You can decide who gets your property instead of the law making the choice for you, you may name the personal representative (executor) of your will as you choose, provided the one named can qualify under Florida law, you can create a testamentary trust in a will whereby the estate or a portion of the estate will be kept intact with income distributed or accumulated for the benefit of others. Minors can be taken care of through testamentary trusts without the expense of guardianship proceedings, you can decide who bears any tax burden and can name a guardian for your minor children.

How is distribution of the estate handled if there is no written will?
When somebody dies without a will, his or her estate must be administered and distributed under the laws of "intestacy."  The court will appoint a personal representative to manage your estate. Depending on whether the decedent is survived by a spouse and/or children, the laws of intestacy will divide up the property in various percentages.  If there is no surviving spouse and no children or heirs at law, Florida law dictates that the estate will "escheat" to the state.  This is a very rare occurrence, but is preventable by executing a proper will.    The rules of intestacy are based on rigid guidelines that cannot be altered. 

Are there any restrictions on how a person may dispose of his or her property
by a will?
While any sort of property may be transferred by will, there are some particular interests in property which cannot be devised by will because the right of the owner terminates automatically upon his or her death or others have been granted rights in property by Florida law.   Some examples on limitations on disposition of property through a will include homestead property (if a person is survived by a spouse and/or minor children), jointly held property or a spouse's elective share (barring a written agreement to the contrary, spouses are entitled to a minimum share of the estate).   Because these issues can be complicated, it is important to consult with an attorney to ensure that your wishes and objectives can be met with your estate planning documents.