Law Offices of Robert Schwartz, P.A.

The main advantage of a living trust (revocable trust) is that it avoids probate. Probate is a court process to transfer your assets upon your passing and can be very time consuming and expensive. The trust has other advantages as well. Having a trust avoids court-supervised guardianships that may occur if you become incapacitated. A trust keeps your personal affairs private and allows for a much smoother transition of your assets. Finally, a trust can assist in making sure your assets stay with your family and not sons-in-law or daughters-in-law.

A revocable trust, sometimes referred to as a living trust, is a legal document that acts similar to a will. Unlike a will, the proper use of this type of trust will avoid probate among other benefits.

There may be several, or absolutely no duties, for the attorney. The attorney's duties might consist of any or all of the following: (1) Advising the Successor Trustee as to what his or her responsibilities are in carrying out the provisions of the Trust. (2) Explaining to the Trust beneficiaries the provisions of the Trust. (3) Preparing the Federal Estate Tax Return, Form 706, which computes the amount of Federal Estate Tax due at death, for larger Estates. This tax form is needed for Estates over the exemption limit, even if there is no probate. (4) Preparing Deeds or Assignments to affect a sale or transfer of real estate, notes, mortgages or land contracts held by the Trust. (5) Obtaining a Court Order for transferring any assets that were not in the Trust at death.

The term "issue" refers to one's lineal descendants, such as children. "Per stirpes" means by the bloodline, so the phrase states that if one of your beneficiaries should predecease you, his or her share would go to his or her children, equally. This prevents your beneficiary's share from going to his or her spouse, or to your step-children, and ensures that it stays within that person's bloodline if he or she predeceases you.

If your Successor Trustee is also a beneficiary, I do not recommend that he or she be given a copy of the Trust. Instead, tell him or her that he or she is to take over your Trust if you get sick or pass away. Tell him or her where he or she can get your Trust papers and records. Also tell him or her who your attorney is and recommend that he or she contact that attorney for advice. If your Successor Trustee is not a beneficiary of the Trust, however, then it does not hurt for the Successor Trustee to have a copy of the Trust.

In my practice, I have encountered many problems with my clients trying to gain access to a loved one’s safe deposit box, causing probate in some instances. When putting together your estate planning documents, please consider the safe deposit box as an asset. If you are setting up a Revocable Trust, consider putting the box in the name of the Trust. If not setting up a box, consider putting a loved one’s name directly on the box so they have access to it if something happens in the future.

Many people think that when an executor is making distributions from an estate, all the assets must be liquidated. This is not the case, as actually distributions can be made “in kind.” This means that the assets can be transferred as they are and not liquidated. However, this option can be difficult when you are trying to make equal distributions of investment holdings.

Many assume that when someone dies, the estate must file an estate tax return and the beneficiaries will pay tax on what they inherit. This is not correct in most cases. Estates generally are not required to file an estate tax return in Florida if the estate is under $12 million. However, the estate will be required to file a Fiduciary Tax Return, also known as Form 1041. This form may need to be filed if there is income, such as interest and dividends, earned by the estate during the administration.

In Florida, a Summary Administration is an abbreviated form of Probate. The advantage of going through a Summary Administration is that it is a much shorter and less-complicated process than a Full Probate Administration. However, there are only certain times that an estate can qualify for a Summary proceeding. First, the assets that need to go through probate must be less than $75,000 in total. Many people don’t realize that the decedent’s homestead may not have to be counted in determining this value. The other instance a Summary Administration can be used is if the decedent has been deceased for over two years. Like anything, there are disadvantages to using this type of administration and you should consult an attorney before you decide.

A Revocable Trust or Living Trust is not a separate entity for tax purposes. As a result, filing a separate tax return is not necessary. Your regular tax filing is all that is required.

It is very important to make sure the execution of your Last Will & Testament (or any other estate planning document, such as a Living Trust) is done properly. Many estates are significantly delayed in the probate process because the documents were not executed with the formalities needed for proper execution. For a Will to be valid, it must be signed by the testator (the person creating the Will) and it must be witnessed and signed by two other people as well. It is very important that those people are in the room when the testator signs the Will. On a side note, I would recommend that the documents are signed in blue ink to help differentiate the original document from a copy. Once complete, this is a validly signed Will. However, at this point, your Will is not yet “self-proving.” This means the witnesses must be located when the testator passes away and can cause a serious delay in the process. It is very important that the execution of the Will includes a “self-proving affidavit.”

Technically, you can probate a copy of a Will. However, the process to probate a copy can be very complicated and very time-consuming. You need to locate the witnesses that signed the Will and notify all of the heirs of the decedent. The heirs have a right to challenge the copy of the Will, which adds many more months to the probate process. If you have created a Will, it is very important that the original Will is not lost and that your executor knows and has access to that original Will.

Yes, Wills that are prepared in other states can be probated in Florida. In some instances, the process may take longer. However, if the Will was executed properly in that state, then Florida will allow you to probate the Will in Florida.

If you had your estate planning documents prepared in Florida, while residing in Florida, and you move to another state, your documents should still be valid in the state you moved to. However, I would recommend that you have the documents reviewed by an attorney in that state to make sure there aren’t any nuances there that may require modifications to your existing documents.

The length of a probate depends on many different factors. The amount of assets in the estate, what Florida county the decedent lived, and whether or not there was a valid Last Will and Testament. If a Formal (or Full) Probate is necessary, the typical length of time is nine months to a year, but it may last several years depending on the complexity of the assets and if the Will is being contested. Typically, the more-populated counties take more time to probate. The amount of time for the probate can also depend on the judge that is overseeing the administration.

Probate is the court process of administering a person’s estate at death. In Florida, probate can be quite time consuming and expensive. Many families set up Trusts for their heirs to avoid probate if possible. The type of probate required depends on the amount of assets in the estate, whether or not there is a Last Will & Testament, and whether or not the decedent lived in Florida. If the assets in the estate are under $75,000 a Summary Administration is all that is required. This is an abbreviated form of probate and can be much simpler than a Formal (or Full) Probate proceeding. Depending on the rule of the Florida county where the probate is taking place, you may even commence a Summary Probate without an Attorney. For all other estates a formal proceeding is required. If the decedent lived in another state and had real estate in Florida, then an ancillary administration is required and depending on the value of the real estate, a summary or formal proceeding is required.

In order to qualify for a loved one to receive Medicaid benefits, if they are receiving long-term-care assistance in an assisted living facility or a nursing home, that person can have very limited assets. Therefore, a popular planning tool is to gift assets away from that individual to their heir or, better yet, to a Trust. However, the transfer must occur five years prior to trying to qualify for benefits. That is what is called the Medicaid look-back period, and advanced planning becomes a necessity if you are concerned about the possibility of assets being exhausted from nursing home costs.

For a person who passes away with an estate valued over $12.06 million (the estate tax exemption amount in 2022) their estate will be subject to a tax. The tax rate on those estates is quite significant and most of the estate’s value is taxed at a rate of 40%. This can create a pretty hefty tax bill for your loved ones and proper planning can potentially help to lower the amount owed.

No. Unlike many other states, Florida does not have a state estate tax. This means that, when you pass away, your estate will not have to pay any estate taxes to the Florida government, regardless of the value of your estate. You may still owe the IRS if your estate is over the estate tax exemption amount of $12.06 million per person.

The estate tax exemption for 2022 is $12.06 million per person. This means that, at the time of your death, the total value of your assets can be worth up to $12.06 million without having to pay estate tax to the federal government. However, if your estate exceeds that amount, you would only pay estate tax on the amount over $12.06 million. For example, if your estate at the time of your death totals $13.06 million, you would only have to pay estate tax on $1 million. A married couple can benefit by having two exemptions or $24.12 million. However, this is not automatic and when the first spouse dies a Federal Estate Tax Return (Form 706) must be timely filed in order to claim the exemption. In 2026, the law for the Estate Tax sunsets and the estate tax exemption is basically cut in half, becoming $6.03 million per person. Therefore, careful planning must be considered when trying to minimize this tax.

No. In most counties in Florida, you are able to deed your property into trust without losing your homestead exemption on the property.

The Successor Trustee of your Trust agreement is the person who is responsible for distributing your assets in accordance with the terms of the Trust. As such, you should pick someone that you are confident will carry out the terms of the Trust properly. Your Successor Trustee can be a friend, family member, or even a bank or attorney.

Items of personal property such as cars, jewelry, furniture, etc. do not have to go to probate upon your passing. If you wish, you can create a written list of how you want to distribute tangible personal property, called a written statement, which is valid as long as it is signed and dated. If you do not prepare the list of personal items described above, then all your personal items will be distributed to whoever the remainder beneficiary is in your Last Will and Testament.

You can always amend your Revocable Trust, with a document called a Trust Amendment, prepared by your attorney. Do not write on your original Trust or attempt to change it on your own. Trust Amendments do not cost as much as a new Trust and will save your family a lot of hassle if the amendments are properly done.

"Per stirpes" means “by the bloodline,” so the phrase states that if one of your beneficiaries should predecease you, his or her share would go to his or her children, equally. This prevents your beneficiary's share from going to his or her spouse, or to your step-children, and ensures that it stays within that person's bloodline if he or she predeceases you.

Your will and trust should be protected, yet accessible to your successor trustee when needed. I recommend the original documents be kept in a safe deposit box. You should make sure someone other than you has access to the box, or re-title the box into the name of your trust.

I do not recommend that you share any estate planning documents with your beneficiaries. Instead, tell them where they can get your trust papers and records. Also tell them who your attorney is and recommend that they contact that attorney for advice.

There are certain types of Irrevocable Trusts which may be beneficial for those who are concerned with the potential costs for long term care. These trusts aren’t beneficial for those who need immediate care, but rather are for those who want to shield their assets in advance. One such trust is called the Medicaid Asset Protection Trust. This type of irrevocable trust can be effective in preserving your assets for future generations even if you may require nursing assistance in the future.

A Revocable Trust does not provide any additional asset protection for the person who created the Trust (e.g., the Grantor). The benefits of a Revocable Trust are that they avoid probate, and that the Grantor can not only modify or revoke the terms of the Trust at any time, but also maintains full ownership and control over those assets. This flexibility is what causes the Revocable Trust to lose any type of independent protection. However, although it is not conducive for providing protection for the Grantor, it could provide protection for succeeding generations if properly drafted.

In Florida, the Durable Family Power of Attorney becomes effective once it has been executed. Some states provide for what’s known as a “springing” power of attorney which becomes effective only upon establishing incapacity. As of 2011 however Florida does not permit those types of powers of attorney. For those who are concerned about this immediate power, our estate planning attorneys can help guide you through the different options you may have in having this document prepared.

A will or trust done in any state within the United States is valid in Florida. However, of course, they will not be in perfect accordance with the laws of Florida, which may cause some extra work for your beneficiaries (or their attorney) when you pass away. In addition, many states do not have a complicated probate process when you pass away, as is so in Florida, where a Revocable Trust is often recommended. If you are moving to Florida from another state, and you already have existing estate planning documents, I recommend having an attorney review those documents.

A bloodline trust, also sometimes referred to as a legacy trust, can be created to ensure that the assets you leave to your children as their inheritance stay within your bloodline. Upon your passing, the share which you leave to your children will stay in trust for them for the rest of their lives, and upon their passing, the remainder of their share will pass only to their children, if they have any, or to your other children, if not. This ensures that your children are not able to ultimately leave their inheritance from you to their spouse, significant other, or anyone else. In many cases, many of my clients appoint their children to be Trustee and the Beneficiary of the trust so that they are able to freely access the assets held within the trust. However, this allows that beneficiary to potentially withdraw the funds and give them to someone outside the bloodline. If this is an issue, you can appoint a co-trustee to serve along with the beneficiary to provide some oversight.

In most cases, I do not recommend that you share any estate planning documents with your successor trustee. If you provide your successor trustee with a copy of your estate planning documents, and then later decide to change who you have listed as successor trustee, this could be an issue as your previously listed successor trustee now is still in possession of the old trust and will now have to be told that you are changing the documents. Instead, tell him or her that he or she is to take over your trust if you get sick or pass away. Also, tell this person where he or she can get your trust papers and records. And tell him or her who your attorney is and recommend that he or she contact that attorney for advice.

The normal rule of thumb for reviewing your existing estate planning documents should be every three to five years. However, if your financial situation or something in your family changes, we recommend a review of those documents. Also, changes in the law may cause it to become necessary to review your documents. As a client of the Law Offices of Robert D. Schwartz, P.A., you will receive an annual letter apprising you of any new changes in the law and how they may affect your documents. The letter also serves as a reminder to review your documents, if necessary.

A proper estate plan deals with what happens in the event of someone’s passing, but it should also deal with the incapacity of that person. A revocable trust can provide for a person to manage assets if the incapacitated party can’t act for themselves, but there are additional documents you should have. A durable power of attorney is a document that allows a named individual to sign on your behalf, pay bills, execute contracts or whatever else is needed to take care of you. A health care surrogate is similar to a durable power of attorney, but the named individual is appointed to make medical decisions on your behalf. These documents are essential to complete your estate plan.

Based on your personal and financial situation, estate planning and the documents needed for it will be different for everyone. There are, however, basic documents that most everyone should have as their basis for a proper estate plan. A revocable trust (also called a living trust) should be the cornerstone of every estate plan. This type of trust avoids probate and makes it much easier for your family to inherit your assets. A last will & testament is an estate planning document that everyone should have. This is true even if you have a revocable trust as part of your estate planning.

If executed properly and properly funded there is no ongoing maintenance with a trust. There should be no extra tax filing requirements with the trust and no separate recordkeeping with the trust. You should, however, make sure the person you leave in charge knows where your estate planning documents are located. It is also very important that you provide this person a general list of your assets and how your accounts are titled. Many assets are sent to the state because the assets go unclaimed by family members.

Once your trust is executed properly, you now must fund it. Many people sign their trust but never place their assets in the name of it, thus never benefiting from having it. It is very important that you re-title or “fund” your trust once the trust is established. This process sounds simple, but determining what should be put in your trust can be tricky and may have adverse consequences if not done properly.

A living trust (revocable trust) must be executed properly to be a valid trust in Florida. There are specific requirements to execute a trust that are similar to those needed to execute a will. There must be witnesses at the signing and the document should be notarized as well. We have seen many do-it-yourself documents that were not valid simply because they were not signed properly.

Today, there are many different ways to establish a trust. For one, you can go online, download the forms, and prepare the trust yourself. Most people opt to have an attorney prepare the trust for them. For your peace of mind, we recommend having an attorney professionally prepare your trust. Most attorneys charge $1,500 to $2,000 to prepare the trust, which may be cost prohibitive. At our firm, our fees for the preparation of a living trust start at $385. This is similar to the price you will pay for online documents, but instead you’ll have the peace of mind of knowing you have an attorney handling the process.

If you have a trust that was done outside of Florida, I would recommend that you have that trust reviewed by a Florida licensed attorney. Florida has specific laws and you will want to make sure your trust complies with those laws. A new trust is typically not necessary; an amendment to the trust may be all that is needed.

A revocable trust, sometimes referred to as a living trust, can be set up so that upon your passing your assets pass to your children and not the spouses of your children. This is often referred to as a bloodline trust and can help keep your assets from passing to your in-laws and make sure that they pass to your grandchildren instead.