06 Apr 8 Myths About Estate Planning in Florida
By: Barry E. Haimo, Esq.
April 6, 2017
8 Myths About Estate Planning in Florida
There are many misconceptions about estate planning. Unfortunately, these myths often prevent people from preparing properly for their incapacity and death.
As a result, the probate process may be more complicated for grieving loved ones. And your assets may not be distributed as you would have liked. That’s why it is important to have a basic understanding of key estate planning documents.
The following are commonly believed myths about estate planning – and the truth behind them, according to Florida probate law.
I don’t have to worry about writing my will. I’m too young!
Unfortunately, we don’t know what life holds for us. Without a will, no one will truly know your wishes.
If you have no family, you risk your assets being turned over to the state. If you do have a spouse, children, or other loved ones, you want to ensure the assets are devised to them.
A will can (and should) be written as soon as an adult has established assets to ensure they go to the people or organization you wish. The will should be updated throughout your life, such as when you are married, divorced, or have children.
Estate planning is all about preparing for your death.
There are several important documents that you should include in your estate plan that handle matters for while you are still alive.
If you become mentally incapacitated or unable to make your own financial or legal decisions, usually due to an accident or illness, unless you prepare ahead, you will be appointed a guardian to handle those decisions for you. That process is long, expensive, burdensome and invasive.
Without the necessary documentation in place, you may not have any say in who is appointed. Key documents, such as a power of attorney and a advance health care directive, ensure that your future is placed in the hands of someone you trust.
If I die without a will, my estate will become Florida property.
If you die intestate (without a will), the assets in your estate be distributed to your heirs, but pursuant to Florida statute. This could be your spouse, children, sibling, parents, or other relatives. Your assets will only be transferred to the state of Florida if no heirs are located.
Check out this Florida intestacy evaluator to see how your estate would be divided if you passed away without a will.
Wills just handle asset distribution.
Even if you looked at the Florida intestacy evaluator and are satisfied with the state’s distribution, you should still write a will.
Wills may also contain the following information outside of estate distribution:
- Your final wishes (whether you want to be buried or cremated, for example)
- Who will be the guardian of your children
- Who will manage your minor children’s property
- Arrangements for your pets
- Information about and access to digital assets
Trusts are only used to avoid estate tax.
Trusts are a useful estate planning tool because they help you avoid probate. However, they do not necessarily help you avoid estate tax.
If your estate is under $5.45 million, you will not have to worry about federal estate taxes in the first place. If your estate qualifies for estate taxes, however, creating a living trust will not help you outsmart the IRS.
Trusts are extremely versatile vehicles that can accomplish many other goals. In addition to probate avoidance and estate tax planning, trusts can help avoid guardianship, prevent elder abuse, protect and preserve assets for generations, and help families and businesses remain organized. They also help minimize the frustration, hassle and expense of transitioning after death.
What goes in a will is final.
Do not hesitate to write your will because you do not know what lies ahead. As mentioned above, you can and should update your will, especially after major life events.
Even after you pass away, there are ways that your personal representative or guardians can be changed. Trusts and wills can both be contested in court if a beneficiary believes that the documents were created under fraudulent circumstances. Guardian or personal representative appointments can also be changed if someone believes your guardian is not completing their duties.
You don’t need a lawyer to write a will.
This is technically true. Templates for wills can be found online. However, those templates may not follow current Florida law, and it is also important that you follow appropriate procedures when signing the will.
A Florida estate planning lawyer can look over your estate plan to identify any inconsistencies or discrepancies that could be potentially contested in court as well as any opportunities you overlooked. They can also ensure you follow current Florida law when signing the will to ensure its validity won’t be questioned after you pass away.
Estate planning is more appropriate for older people
Age is not the only reason people should engage in estate planning. It’s important to engage in estate planning and have your plan reviewed regularly if any of the following apply:
- You own assets.
- You are married and have children.
- You own a business.
- You have a complicated family dynamic.
- You have a blended family.
- You want to minimize estate, gift and income taxes.
- You want to protect and preserve assets for generations.
- You want to organize assets so everything is controlled and passes seamlessly and smoothly to your family.
- You want to minimize the legal, financial and administrative burden and hassle of death and incapacity.
- You want to donate to charity or devise assets contrary to Florida law.
Barry E. Haimo, Esq.