ESTATE PLANNING - Wills and Probate
What is a Will?
A will is a document whereby a person expresses his wishes and desires concerning the disposition of his property after his death. With a few limitations, a person can give his property to whomever he wants and for whatever purpose he desires. A will is also used to designate the person who will act as one’s personal representative after death. The personal representative (referred to in some states as an “executor”) is the individual who acts as the legal representative of the decedent charged with administering that person’s estate. The personal representative has the right to bring legal claims on behalf of the decedent or defend claims of third parties against the estate of the decedent. A will is often used to choose the guardian of one’s minor children in the event one parent dies without a surviving spouse. The choice of guardian is often the primary motivation of younger couples for making a will. A will should be drafted by an attorney. Preparation of a will by someone other than a lawyer may be the unauthorized practice of law.
What if you don't have a Will?
If a person dies without a will, he is said to have died “intestate”. In other words, a person dying intestate has left no direction regarding the recipients of his property or the appointment of his legal representative. In Florida, the consequences of dying intestate are determined by Florida Statute Section 732.104. The statute dictates how a person’s property is divided among his surviving spouse (if any) and heirs in the event he does not have a will.
What is Probate?
Probate is the legal process of administering the property of a decedent. The primary concerns of the probate court are: (i) determining the rightful heirs to property (whether such heirs or designated in a will or by laws of intestacy); (ii) making sure the financial obligations of the decedent are paid; and (iii) transfering legal title of property to the heirs. The probate proceedings are administered through the probate courts which are a division of circuit courts in each of Florida’s counties. A personal representative must be represented by an attorney under Florida Rules of Court.
Types of Probate
In Florida, there are different types of probate depending on the amount and nature of property involved in the decedent’s estate. A full or complete probate administration is called a formal probate. There are, however, several simplified types of administering an estate if the estate qualifies. First, there are family probate and summary probate for small estates which do not include real estate. Summary and family probate are analogous to a “small claims” case in civil matters. The qualifications for a family administration are set forth in Florida Statute Section 735.101.
Taxable Estate
The “probate estate” is distinguished from the “gross estate” or “taxable estate.” A person’s gross estate is comprised of property interests subject to estate taxation, and it is more encompassing than the probate estate. The gross estate includes all property in which the decedent had an interest or over which he had control. For example, unlike the probate estate, the taxable estate includes the decedent’s property owned joint with right of survivorship; it includes financial products involving contracts with third parties (life insurance, etc.); it includes IRAs or 401K plans; and it includes all other property over which the decedent exercised any control or power.
