WILLS & TRUSTS

Overview

Wills and trusts law in Florida is governed by state statutes and common law, as well as federal law where applicable.

Wills: Definition: A will is a legal document that specifies how a person’s assets will be distributed after their death. Requirements: In Florida, a will must be in writing, signed by the testator (person making the will), and witnessed by two witnesses who are not beneficiaries of the will. Types of wills: Florida recognizes several types of wills, including a self-proving will, a holographic will, and a nuncupative will (oral will). Probate: A will must go through probate in order for the assets to be distributed. Probate is a court-supervised process of administering the estate of a deceased person.

Trusts: Definition: A trust is a legal arrangement in which a trustee holds and manages property for the benefit of a beneficiary. Types of trusts: Florida recognizes several types of trusts, including revocable trusts, irrevocable trusts, and testamentary trusts. Benefits: Trusts can be used to avoid probate, reduce estate taxes, provide for minor children or disabled adults, and protect assets from creditors. Requirements: A trust must be in writing and signed by the settlor (person creating the trust). It must also have a valid trust purpose, a definite beneficiary or beneficiaries, and identifiable trust property.

Estate Planning: Definition: Estate planning is the process of planning for the management and disposal of a person’s assets and property after their death. Key components: Estate planning may involve the creation of a will, a trust, a power of attorney, and/or a healthcare directive. Benefits: Estate planning can help ensure that a person’s assets are distributed according to their wishes, minimize taxes and other costs, and provide for their loved ones.

Wills and trusts law in Florida can be complex, and it is important to work with an experienced estate planning attorney to ensure that your wishes are properly documented and your assets are protected.

The Challenge

Preparing or enforcing a will or trust can be a complex process, and there are several challenges that can arise.

Capacity: One of the main challenges in preparing a will or trust is ensuring that the testator or settlor has the necessary mental capacity to make decisions about their estate. If there is any question about the person’s capacity at the time the will or trust was created, the validity of the document may be challenged. Undue influence: Another challenge is the potential for someone to exert undue influence over the testator or settlor. If it is suspected that someone has coerced or manipulated the person into making certain decisions about their estate, the validity of the document may be challenged. Interpretation: Even if a will or trust is properly prepared, there can be disputes about the interpretation of its terms. This can happen if the language of the document is unclear or if there are conflicting provisions. Execution: In order for a will or trust to be valid, it must be executed in accordance with Florida law. Failure to follow the proper procedures for execution can result in the document being challenged. Trustee or executor disputes: Disputes can arise among beneficiaries, trustees, or executors regarding the management or distribution of assets. This can lead to litigation and delay in the distribution of assets. Tax issues: Estate planning can involve complex tax issues, and failure to properly account for taxes can result in additional costs or penalties. Overall, the challenges that can arise when preparing or enforcing a will or trust underscore the importance of working with an experienced estate planning attorney who can help navigate these issues and ensure that your wishes are properly documented and carried out.

Why You Need an Attorney

There are several reasons why it is important to hire an attorney to prepare a will or trust: Ensure that your wishes are properly documented: An experienced attorney can help ensure that your will or trust accurately reflects your wishes regarding the distribution of your assets and the management of your estate after your death. They can also help you consider factors that you may not have thought of, such as tax implications and creditor protection. Avoid common mistakes: There are many legal formalities that must be followed when preparing a will or trust in Florida. An attorney can help ensure that these formalities are met, avoiding mistakes that could lead to the document being contested or declared invalid. Minimize the potential for disputes: An attorney can help anticipate and address potential issues that could lead to disputes among beneficiaries or other parties, such as ambiguity in the language of the document or confusion about the testator or settlor’s intentions. Save time and money: While it may be tempting to prepare a will or trust on your own, mistakes or disputes can lead to costly and time-consuming litigation. Hiring an attorney can help minimize the potential for such issues, saving time and money in the long run. Provide peace of mind: Knowing that your estate plan has been properly prepared by an experienced attorney can provide peace of mind and help ensure that your wishes are carried out after your death. Overall, preparing a will or trust can be a complex process, and it is important to work with an experienced attorney to ensure that your wishes are properly documented and your assets are protected.