What Estate Planning Documents Do You Need in Florida?

Florida estate planning involves certain documents that direct where property goes after your death. Basic Florida estate planning includes the following documents:

  • Will. Covers the disposition of your property after your death.
  • Power of attorney. Grants someone else the legal authority to act in your place.
  • Health care directive. Allows someone else to make medical decisions for you if you are incapacitated.
  • Living will. States your desire for when to end life-sustaining treatment.
  • Declaration of pre-need guardian. Designates who should be your legal guardian if a Court determines that you need one.

Often estate planning in Florida also includes a living trust.

Frequently Asked Questions

What is Probate?

Probate is the legal process of administering the property of a deceased person (decedent). The primary concerns of the probate court are: (i) determining the rightful heirs to property (whether such heirs are designated in a will or by laws of intestacy); (ii) making sure the financial obligations of the decedent are paid; and (iii) transferring legal title of property to the heirs. Probate proceedings are administered through the probate courts which are a division of circuit courts in each of Florida’s counties.

What is a personal representative?

In Florida estate planning, the person who represents the decedent in probate is called a “personal representative.” A formal probate requires the appointment of a personal representative.  Most wills nominate a personal representative. 

What is the Estate Tax?

The estate tax is imposed on the transfer of wealth at death. The calculation of the estate tax is based on the value of a decedent’s “gross estate.” The gross estate can be loosely defined as the value of all property in which the decedent had an interest at the time of death (plus certain other statutorily mandated items).

Property Subject to Estate Tax

A decedent’s property may be subject to federal estate tax. The decedent’s property interests that are taxable comprise what is referred to as the “ gross estate.” The gross estate can be loosely defined as the value of all property in which the decedent had an interest at the time of death (plus certain other statutorily mandated items).

 Gross estate assets are usually valued at fair market value on the date of death. Some of the rules regarding the inclusion of property in a decedent’s gross estate are as follows:

Property Owned Outright. All property that a decedent owned individually and outright is part of the decedent’s gross estate.

Jointly-Held Property. Many people die owning property jointly rights of survivorship. The most common occurrence is property between husband and wife. For tax purposes, one-half of the value of such joint property is included in the gross estate of the first joint tenant to die and the other one-half is excluded from the gross estate. If joint property is held with right of survivorship between persons who are not husband and wife (such as parent-child or brother-sister), then the entire value of any joint property will be included in the estate of the first joint tenant to die unless the estate can affirmatively prove that the surviving joint tenant supplied some, or all, of the money used to purchase the joint property.

Life Insurance: The proceeds of any life insurance on the decedent’s life is included in the gross estate if (a) the policy proceeds are payable directly or indirectly to the decedent’s estate; or (b) the decedent held any incident of ownership in the policy, such as the right to change the beneficiary, surrender or cancel the policy, or borrow against the property.

Deductions from Gross Estate.

The federal estate tax law permits several deductions from the taxable value of a decedent’ s gross estate. The most significant estate tax deduction is the unlimited marital deduction which provides an estate tax deduction for property left to a surviving spouse. There are two basic prerequisites of the unlimited marital deduction:

An Interest Must Pass to the Surviving Spouse. A marital bequest must be to a legally recognized spouse. A bequest to a divorced or deceased spouse will not warrant a marital deduction. The surviving spouse must also be a citizen of the United States.

The Interest Must be a Deductible Property Interest. A decedent’s property interest is deductible only to the extent such interest is included in determining the value of the gross estate. If a property interest is not included in the gross estate, its passing to a surviving spouse does not qualify for a deduction.

What to Do Next

We help people plan how they want to leave their assets and can take care of the entire probate process from start to finish. Contact us to get started.

Last updated on June 10, 2020

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