What if I do not have a Will or a Trust?
Most people think that executing a will or trust avoids probate; however, a probate is necessary to transfer assets left in a person’s name at the time of death. If property, whether a bank account or real property, is titled to a deceased individual, with no joint owner or beneficiary, a probate administration will be required. A judge will determine the beneficiary of the deceased person’s asset. Dependent upon the size and nature of the estate, different administration options may be available under the Florida Probate Code. Keep reading to learn more from Elaine McGinnis, an experienced Tampa estate planning attorney.
A Florida last will and testament allows a person to name the beneficiaries of his estate. If the will is properly executed, the judge will admit the will to probate court and follow the intentions of the will. If there is no will, the estate is considered “intestate” and the judge will follow the Florida laws of intestacy, which states a priority of beneficiaries. The intent of the legislature in creating the intestacy statute was for the statute to reflect most people’s wishes as to the disposition of their property. People have unique families, including second marriages, estranged children, deceased family members and family members with special needs. All of these factors are an important consideration in drafting a last will and testament or trust. It is important to plan for the unique needs of families and to be thinking about alternative fiduciaries and beneficiaries in the event of unforeseen circumstances.
A revocable living trust is a common tool to avoid probate. But again, a well- drafted and signed trust alone will not avoid probate. Probate will still be required if the assets of the decedent are in his name alone. The appointed Trustee only has the authority to collect, manage, and distribute assets in the name of the trust. Therefore, it is crucial to ensure that you transfer, re-title, or assign your assets to your trust after it is executed. This is often referred to as “funding” the trust. Your attorney may assist you in this process or may just provide instruction regarding how to fund your trust. It is quite important that you review any documentation you may receive regarding funding your trust and ask your attorney questions if you do not understand how to proceed. It is always disappointing when an asset is not titled to the trust and a probate is required merely to transfer the assets to the trust.
Probate can be expensive and time consuming therefore many clients seek to avoid probate due to the time and expense involved. Clients often do not feel that they can really grieve the loss of their loved one until the probate is closed.
Generally, a probate in Florida will not be required when an asset is titled jointly with another person or has a beneficiary listed. It is important to review all asset titles and beneficiary designations as part of your estate plan. Again, the title of the asset will control its disposition outside of probate. Therefore, if your child is 18 years old and listed as a beneficiary on your savings account, even if you have a trust stating that you daughter will not receive a distribution until she is 25 years old, your daughter will still receive your savings account outright as she is listed as the beneficiary. In this scenario, the account should be either re-titled to the name of the trust or the trust could be listed as the beneficiary of the account.
Many people feel a sense of relief when their estate plan is completed, but it is important to understand that all assets must be titled correctly to carry out the estate plan. Contact experienced Tampa estate lawyer, Elaine McGinnis, P.A. today to discuss your Florida will or trust.