Few decisions in life are as distasteful, yet as important, as planning for its end. Those who do such planning save their heirs much anguish and frustration, and often a great deal of money. This article attempts to explain in broad terms various estate planning vehicles for the elderly, such as living wills, durable powers of attorney, federal estate and gift taxation, the probate system, avoiding probate, Medicaid eligibility, and guardianship.
The probate system has a bad reputation, as something always to be avoided. Like most institutions, the probate system is sometimes wrongfully criticized by those who are misinformed. Probate is the process by which a decedent’s bills are paid and property held in the decedent’s name alone are transferred by court authorization, in accordance with the decedent=s will, if there was one, or by general law if no will is found. Contrary to what some people think, if you don’t have a will, the State does not “take” your property. Rather, State law just writes a will for you, based upon what is generally accepted in our society as the standard will. However, if your titled assets are transferred properly prior to death, there is no need for judicial involvement. That is the purpose in “avoiding probate”, but there are pitfalls to be avoided. By “adding names” to property during one’s lifetime, it may be difficult to have the property returned to, or conveyed by, the donor, or to the donors intended beneficiaries.
The most common types of probate in Florida are formal administration and summary administration. Summary administration applies to probate assets less than $75,000.00 in total value, excluding the value of the homestead; attorney’s fees and court costs would amount to between $600.00 and $1,000.00. The process takes approximately two weeks from beginning to end. Formal administration takes around five months, in large part because of the three‑month period for claims to be filed against the estate. Attorney fees for formal administration are specifically set forth in the Florida Statutes.
There are many ways of avoiding probate of one’s assets. The major ones are a living trust, putting property in joint ownership with a survivorship interest, such as life estates on real property, or joint tenancy with right of survivorship for real property, bank accounts, stocks and bonds. Again, beware of pitfalls. Even though one plans to avoid probate, however, it is still an excellent idea to have a current Florida will, to cover assets which inadvertently or unavoidably were not transferred into the name of the trustee, remainderman, or joint tenant. If even one titled asset is in the decedent=s name alone at death, probate would still be necessary in order for title of that asset to be transferred. Although out‑of‑state wills are generally valid in Florida, it is time consuming and therefore expensive to go out‑of‑state to find the witnesses to those wills. Life insurance proceeds also pass outside of the probate system, unless your estate is a beneficiary of the policy. You can expect to spend between $100‑$300 for two reciprocal husband and wife simple wills, and more for more complicated wills, testamentary trusts, or a separate contract between spouses that the will shall not be revoked or modified after the death of the first spouse.