Q: What is the difference between a specific bequest and a residuary bequest ?

A: A specific bequest gives the beneficiary either all or a fractional interest to specific identified property. It is paid after lawful claims and administrative costs - before the residuary bequest. If the specific property is not in the estate at the time of death, the beneficiary takes nothing. A residuary bequest gives the beneficiary everything that remains in the estate after payment of lawful claims, administrative costs and specific bequests. Unless provided otherwise in the will, claims and costs are charged against the residuary bequest. If there is no devise of the residuary assets, the residuary estate passes as provided by the intestate provisions.

A: Any writing on the will is not effective to make a change. Changes can be made by adding a codicil to the will or making a new will.

A: Yes. To eliminate conflict, the will should specify the disposition selected by you, or the person to have control in making arrangements.

A: A testatrix is a man who signs a will. A testatrix is a woman who signs a will.

A: If the beneficiary was a grandparent or a lineal descendant of a grandparent of the maker of the will, then the devise will pass to the deceased beneficiary's descendants per stripes unless there is a different disposition provided in the will.
If the beneficiary was not a grandparent or lineal descendant of a grandparent of the maker of the will, then the devise will fail unless a contrary result is specified in the will.

A: An old will can be revoked by (1) making a new will which states the old one is revoked, or by destroying the old will.

A: While your minor child’s surviving parent (your ex-spouse) has priority to appointment as guardian, you are free to name whomever you wish as trustee of a testamentary trust. The property that you want your children to receive would be devised to the trustee of your testamentary trust. The trust would contain specific directions of payments to be made for the benefit of your children and the ages for distribution after attainment of adult status. By use of the trust, your bequest to the children does not enter guardianship proceedings or the control of the ex-spouse. By avoiding guardianship, you also save thousands of dollars in legal fees and are not compelled to give control of the property to your child at age 18.

A: A testamentary trust is one created in your will. It designates a trustee to receive and manage certain assets and to distribute the income and principal at future times as specified by you in the trust.

A: You need a person who is honest, has the financial experience and skills to manage your assets, is well organized, dependable and has the time to devote to the job. It is best to avoid persons who have a conflict of interest with other beneficiaries, major health problems which limit ability, or impairments such as drug or alcohol addictions.
You may select any Florida resident without a felony conviction, relatives without a felony conviction whether residing in Florida or not, or a financial institution authorized to provide trust services in Florida. You may name two parties to serve as co-personal representatives. You should also name an alternate in case your first choice is unable to serve. It is best to ask the person in advance if he or she is willing to serve.

A: Your personal representative is responsible for collecting and protecting your assets, identifying and paying lawful debts, and distributing the net estate to the parties and in the manner designated by you. The personal representative selects the attorney, certified public accountant and other professionals which may be required. To accomplish this the personal representative will review your financial records and inventory your assets. The personal representative will sign documents required for probate and tax returns. The personal representative is entitled to compensation for these services. A personal representative’s legal authority to act begins only after the court has issued Letters of Administration in the probate proceeding.

A: You can name any person who is a Florida resident who has not been convicted of a felony. You can name relatives to act as personal representative even if they do not live in Florida. You can also name corporation authorized to do business in Florida and provide trust services as your personal representative.

A: Yes, except minor children have a protected interest to any homestead titled in the deceased parent’s name alone. The children will receive the homestead after the surviving spouse, if any, dies.

A: Unless your spouse has signed a valid Nuptial Agreement waiving his or her rights as a spouse, the surviving spouse can claim spousal rights provided by Florida law. See elective share, exempt property and homestead under probate questions.

A: If the children will receive more than $15,000 upon your death, you should consider alternatives that will keep the inheritance out of court guardianship. The disadvantages of the court guardianship are legal costs involved and forced distribution to the child of a considerable sum at age 18. This can be avoided by including a testamentary trust in your will which names a responsible adult and/or trust company as trustee and provides for distribution at ages you deem appropriate. You might provide for distribution of half at age 25 and half at 30.

A: The personal representative is the person appointed by the court to administer the estate. Their duties include hiring the attorney, collecting all of the decedent’s assets, safeguarding the assets, notifying creditors and interested persons of the estate, filing required tax returns, payment of lawful debts, and distribution of the assets to the heirs. Designation of a responsible person to carry out these duties can be done in your will. In Florida, the personal representative must be either a Florida resident, or a member of a statutory class of relatives or spouse of such relative. The personal representative must also be 18 years or older, mentally and physically able to perform his/her duties and not convicted of a felony. (This is the person who will go through your sock drawer as well as your files).

A: If you died simultaneously in an accident with your spouse, each of you would have an estate distributed under the intestate laws. Who would be the personal representatives of your estates? If there are children, who would be their guardians? Probably worse than simultaneous death, would be one spouse surviving for a few hours. That surviving spouse would be the sole owner of all assets which would pass to his/her heirs at law. The heirs of the first to die would receive nothing. These problems could be avoided with a will.

A: 1) Only assets titled in the decedent’s name alone are distributed by the will. Life insurance policies, IRA accounts, annuities and 401 (k) accounts payable to a beneficiary named in the document are paid to the named beneficiary. Assets in joint names with right of survivorship or held as tenants by entireties by a husband and wife, pass automatically to the survivor. 2) If the original will was in the possession of the decedent and cannot be produced, there is a rebuttable presumption that it was destroyed with the intention of revoking it. If the presumption is not rebutted, then the will is deemed revoked and not followed. 3) You cannot disinherit a spouse without the spouse’s written consent. A spouse may claim against the will for an elective share, exempt property, family allowance and homestead. 4) If the will was signed before the marriage to the decedent’s spouse, the law presumes there was no intent to disinherit the spouse and allows the spouse to take the share he/she would have received if the person died without a will. 5) There are other reasons for which a will may be contested such as duress, fraud, lack of mental capacity.

A: A will or last will and testament is a document which names the personal representative to administer the estate and directs the distribution of property titled in decedent’s name alone. It has no legal effect until admitted to probate by court after death of maker. Parents of minor children can designate guardian of person and property for children in the event no parent is surviving. You may also include provisions to defer distribution to your children to more adult age than 18 years.

A: Florida does not recognize holographic (handwritten) wills unless they meet the requirements for all valid wills, which is that the testator sign the will in the presence of two witnesses who then sign the will as witnesses in the presence of the testator and each other. Ideally, in addition, wills should be self-proven with appropriate language and notarization in order that the witnesses will not have to be located after the testator's death.

A: An Irrevocable Intervivos Trust is general used as part of a plan to reduce federal estate taxes. If you desired to make a substantial gift to a minor child and have the gift removed from your taxable estate, an Irrevocable Trust could be used. The minor child would have the option to remove the principal upon age 21 years. The assets transferred would be subject to the provisions of federal gift tax. Any appreciation in value of assets after the transfer to the trust would not be subject to gift or estate tax. It can be used in other manners to make a transfer of a relatively small amount now to shelter appreciation in the future.

A: If you wish to keep certain assets out of probate at your demise, transferring them to the trustee of your intervivos revocable trust will avoid probate. Since the assets are titled in the name of your trustee as trustee of your trust, they are not part of the probate estate (but would be counted as part of your estate for federal estate tax purposes). In the Revocable Intervivos Trust, the maker would be the Grantor, and could also name himself/herself to be the trustee, and name himself/herself to be the sole beneficiary during lifetime. The trust would designate a successor trustee to take over management upon the death or incapacity of the Grantor. It would designate the beneficiaries to receive the assets after the Grantor has died.
Certain assets are not suitable for a revocable intervivos trust. Assets in IRA accounts and 401k accounts, due to income tax provisions are not suitable. If you transfer your principal Florida residence to a trustee, you give up the “homestead” protection from creditors claims, although with appropriate trust provisions, you may still apply for and receive the “homestead exemption” benefit on property taxes.

A: If you plan to leave more than $15,000.00 to a child who may be under 18 years old at your death, by setting up a trust in your will and designating a trustee to manage the assets, you avoid the need for a court guardianship of the property on your devise. You may also delay distribution of the assets to whatever time you decide is appropriate rather than having the child receive all of them at age 18 as would happen in a guardianship. You also gain the option of selecting whomever you trust to be the trustee, while in a guardianship the surviving parent or parents have priority in being appointed as guardian.
A testamentary trust is appropriate whenever you believe the beneficiary may lack sound financial judgment (or their spouse lacks financial judgment). It allows you to provide sound financial management through the trustee and provide financial benefits to your beneficiary as you have specified.
A trust also allows you to have one person receive the income for a specified period, or his life, and leave the principal assets to a different beneficiary. You may wish to leave your spouse income for life on certain assets, and have the principal go to your children or another beneficiary after your spouse dies. By leaving your beneficiary income for life only, the principal does not become a part of the income beneficiary’s taxable estate.

A: A Revocable Trust can be amended and changed by the Grantor while the Grantor is alive and has mental capacity. An Irrevocable Trust cannot be amended or changed by the Grantor. Since the Grantor of a Revocable Trust keeps substantial control over the trust, transfer of assets to the revocable trust are not subject to gift tax, but the assets are included in the Grantor’s estate for determining federal estate taxes. Assets in a Revocable Trust are subject to claims of creditors.
An Irrevocable Trust is often prepared so that the Grantor does not retain powers over the trust which would subject the assets to federal estate taxes, but as such lifetime transfers would be counted, and possibly taxed, under the gift tax regulations. If the Irrevocable Trust is prepared so that the Grantor does not retain control, the assets are generally not subject to the claims of the Grantor’s creditors.

A: An Intervivos Trust is created and takes effect during the lifetime of the Grantor. A Testamentary Trust is created to take effect and receive assets after the death of the Grantor. A Testamentary Trust is generally created as part of the Grantor’s Last Will and Testament.

A: It will be necessary for the parents to be appointed as guardian of the property of the minor child by the court before distribution can be made. In Miami-Dade County, Florida, it is customary for the court to require the funds be placed in a frozen bank account until the child reaches the age of 18. Guardianship is required for sums in excess of $15,000 received by a child unless the bequest directs payment to a person as Custodian under the Florida Uniform Transfer to Minors Act or to a trustee of a trust.

A: It is recommended that you consult with your own attorney since your options to object to the will or personal representative are limited by time. Your attorney can advise you on whether you’re eligible to elect any other options. Depending upon the circumstances, you may want the attorney to monitor the estate to insure that your interest is protected.

A: You can check with the clerk of court, probate division, of the county where the decedent was domiciled. In Miami-Dade County, Florida, you can check online at miami-dadeclerk.com/civil/pubsearch.asp.

A: Probate is filed in circuit court of the county and state where the decedent was domiciled. If the decedent had no domicile in Florida, then it can be filed in any county where the decedent owned property. If a decedent owned property in different states, there would be a probate administration in each state where property was owned.

A: The surviving spouse of a decedent who was domiciled in Florida at time of death has the right to claim a share of the elective estate equal to 30 percent. There are time limits on when the surviving spouse must file to claim the elective share. The definition of property subject to the elective share is too lengthy to include here, it does apply to more than the probate estate.

A: If the decedent was domiciled in Florida at time of death the surviving spouse and lineal descendants supported by the decedent (or entitled to support from the decedent) are entitled to a reasonable amount, not to exceed $18,000, for maintenance during estate proceedings in addition to homestead, statutory entitlements, and share of estate (unless the will provides otherwise).

A: If a decedent was domiciled in Florida at time of death, the surviving spouse, or if none, the decedent’s children can have the following property designated as exempt from creditor’s claims (excluding perfected security interests) (1) $20,000 worth of household furniture, furnishings, and appliances in decedent’s usual abode; (2) Two motor vehicles held in decedent’s name and regularly used by decedent and immediate family as personal automobiles; (3) Qualified tuition programs under Sec. 529 of IRS code; (4) Certain death benefits for teachers and school administrators under Florida Statute 112.1915. There is a time limit in which to claim exempt property.

A: In addition to the restrictions on transferring the homestead at death, the homestead owned by a natural person is exempt from forced sale by creditors. It also receives an exemption from property taxes (presently $50,000 in value) and a limit on increases in assessed value for property taxes.

A: A residence occupied by the head of a household or his/her family in Florida is limited in size to qualify for homestead treatment. Residences located in a city or town can be comprised of one-half acre or less with the residence on it. Outside of a town or city, the homestead property can consist of up to 160 acres of land and the residence on it. A person, or married couple, can have only 1 homestead.

A: A residence owned by a Florida resident who is the head of a household cannot be left by will when the deceased owner is survived by a spouse and a minor child. The surviving spouse receives a life estate in the property and upon death of the surviving spouse, the children of the deceased title holder receive the property in equal shares. If the deceased owner was survived by a spouse, but no minor children, the owner may provide in his/her will that the surviving spouse receives all of the homestead. If no provision is made in the will, then the surviving spouse receives the life estate, remainder to the children. If the surviving spouse has only a life estate he/she will not be able to mortgage or sell the property without the consent of the children. To avoid these problems, many married persons hold title to the homestead in both names as tenants by entirety, so the surviving spouse receives the entire homestead upon the death of his/her spouse.

A: Florida law provides that the decedent’s spouse receives (1) if there are no surviving lineal descendants (child, grandchildren, etc.), then the spouse receives the entire probate estate (assets in decedent’s name alone); (2) if there are surviving lineal descendants who are also lineal descendants of the surviving spouse, then the spouse receives the first $60,000 and of the balance.(3) if there are surviving lineal descendants who are not lineal descendants of the surviving spouse, then the spouse receives half of the estate. The share of the estate not passing to the surviving spouse, or if there is no spouse surviving, passes to (1) the lineal descendants of the decedent, (2) if no lineal descendants, then to the decedent’s mother and father equally, or the survivor of them; (3) if there are none of the above, then to the decedent’s brothers and sisters and the descendants of deceased brothers and sisters; if there are none of the above, one-half each to the decedent’s paternal and maternal kindred in the following order: a) To the grandfather and grandmother equally, or the survivor; b) If there are no grandparents, to uncles and aunts and descendants of deceased uncles and aunts of decedent; c) If there is either no paternal kindred or material kindred, then to the other surviving kindred in the above order. d) If there is no kindred of either part, the whole estate passes to the kindred of the last deceased spouse of the decedent as if the spouse had survived and then died intestate. (4) See also questions on homestead, exempt property and family allowance for special provisions in addition to above.

A: Unless there are complications or disputes, most nontaxable estates take between four and six months for formal administration, but just a matter of weeks for summary or family administration. Taxable estates cannot close until the IRS signs off on the Estate Tax Return 706, which has to be filed within nine months after the date of death and often takes that long to prepare. Taxable estates are doing well to close in two years. However, the work is primarily done in the first nine months of a taxable estate, and the rest of the time is spent mainly waiting for IRS review and approval to close the estate.

A: Yes, in almost all cases. Except for disposition without administration (very small estates) and those estates in which the executor (personal representative) is the sole beneficiary, Florida law requires the assistance of an attorney. Even when an attorney is not required, formal administration has so many technical rules and pitfalls that it can be very frustrating for the non-lawyer.

Q: How can I save on estate tax ?

A: By preparing an estate tax analysis, your attorney can recommend ways to save tax with your estate planner.

A: So long as the bequest qualifies for the marital deduction, there is no limit on the amount for U. S. citizens. Leaving all your estate to your spouse may result in loss of tax breaks and a greater tax upon your spouse’s death.

A: For U. S. residents dying in 2011 or later, a federal estate tax return must be filed when the fair market value of their gross estate equals or exceeds $5 million.

A: An adult may avoid guardianship in the event of his/her future incapacity by having certain documents prepared before the incapacitating event occurs. These include a Durable Power of Attorney, Designation of Health Care Surrogate, and if desired, a Living Will or Declaration Against Life Pro-Longing Procedures (applies when death is imminent). The Durable Power of Attorney is used to appoint a person as attorney-in-fact to manage all assets, sign tax returns, and to take all actions required to manage the property. The Durable Power of Attorney can be effective immediately upon signing, or contingent upon an affidavit from you physician attesting that you are incapacitated. The Designation of Health Care Surrogate appoints a person to make medical decisions for you when you are incapacitated and authorizes health care providers to release your medical information to that person. In many cases by providing for your property management and medical decisions, the need for a guardian is avoided.
As the parent of a minor child, you can avoid guardianship of the property for him/her, by establishing a trust to take effect and be funded upon your demise. This enables you to name the person or financial institution you select to manage your assets and provide support for your child. (If you are divorced, you do not have to name your former spouse as the trustee, while in a guardianship the former spouse has priority to appointment as guardian.) It has the advantage of allowing you to delay transfer of the assets to your child to an age or ages which you deem appropriate. In a guardianship, the child receives all the assets at age 18.
However, if both parents are deceased, there will need to be a court guardianship to appoint a guardian of the person for the minor child. But the expense will be reduced by avoiding the guardianship of the property.

A: For a minor, the guardianship should end when the child reaches the age of 18 years. The guardian must file a final accounting, deliver the assets to the former child and obtain a receipt for them, and file a petition for discharge from further duties by the court.
For an adult, it ends when the court finds that the person has regained full capacity, or upon the incapacitated persons demise. When either occurs, the guardian will file a final accounting, deliver the assets to the former incapacitated or to his personal representative if he is deceased, and petition the court for an order of discharge.

A: In Florida, the court shall give preference to any person related by blood or marriage and is otherwise qualified. The educational, professional or business experience of the applicant to handle the needs of the incapacitated are considered, as is the persons ability to meet the unique needs of the person. The court shall also consider the wishes of the incapacitated adult person and a minor over 14 years old, and the designations made in a will.

A: Any person who has been convicted of a felony, or has been determined by a court to have committed abuse, abandonment, or neglect against a child, a creditor of the incapacitated person, or one who provides substantial services to the incapacitated in a professional or business manner.

A: In Florida, the court will appoint an independent attorney to represent the alleged incapacitated person. It will also appoint a committee of 2 physicians and 1 lay person to examine the alleged incapacitated person and report its findings to the court. The court will schedule a hearing of all interested parties to consider the facts. The court then makes a determination as to whether or not the person is incapacitated, and if so, whether there are some areas in which the person may still make decisions. If the court finds that the person is incapacitated, and there are no alternatives less restrictive than guardianship, there is a hearing to appoint a guardian for the person.