Estate Planning

Hands of two people with a document and a pen


Families wanting to protect their loved ones in the event they become incapacitated or pass away must consider estate planning. A reputable Florida estate planning attorney with Luhrsen Goldberg can help families create an estate plan to ensure assets are properly taken care of upon their death (or incapacity). Schedule a confidential consultation today to learn more about the elements of a comprehensive estate plan and how to make these important decisions.

Estate Planning in Florida

Everyone should have an estate plan, which is a legal document telling people what they would like to happen in the event they are incapacitated or if they die. An estate plan directs the asset transfer to the people they wish to receive them. A Last Will and Testament is a common estate planning document that notes what should happen to their land, belongings, and money after they die. 

Other estate planning documents include deeds, healthcare surrogates, trusts, and powers of attorney. An estate planning attorney can help explain the best document for different circumstances. These documents can help families manage their affairs and ensure property is transferred correctly. Properly written and thought-out estate plans, such as those involving trusts and beneficiary designations, can avoid the probate process. Generally, probate is required when an individual dies with assets titled solely in their name and no beneficiary designations. 

A Last Will and Testament alone does not keep families from avoiding probate. Instead, the Last Will and Testament directs the probate judge who should be in charge of the estate and who is to inherit the assets.

Florida Probate Laws

The court-supervised process of probate transfers a deceased’s assets to living people. These assets, including personal property, real estate, and bank accounts, are passed on to the individuals listed in the Decedent’s properly executed Last Will and Testament.

When no will exists, inheritance follows a legal hierarchy known as “intestate succession.” Having a Last Will and Testament can avoid intestate succession so that all assets are distributed as desired. 

However, the possession of a last will and testament still requires recipients of the assets to wait through a potentially lengthy probate administration before receiving the assets. During probate administration, assets are subjected to creditor’s claims, which can create an expensive delay for the estate’s beneficiaries.

An estate planning lawyer can help families create a comprehensive plan to protect their loved ones from dealing with the probate court. To learn more about the Florida probate process, contact Luhrsen Goldberg.

How to Avoid Probate in Florida

The most important way to avoid probate is to ensure that upon a loved one’s passing, no assets are titled solely in a decedent’s name without beneficiary designations.

Probate can be avoided in many ways. However, the most common method of traditional probate avoidance is through the utilization of trust-based estate planning. The most complex and powerful estate planning tool is a trust. 

A trust can:

  1. Set rules for how assets are to be used after the decedent’s death
  2. Protect assets used by the decedent’s family 
  3. Protect the government benefits of disabled beneficiaries
  4. Enable the Trust Grantor to create a plan to distribute assets over a long period of time. 
  5. Transfer property in multiple states to the Trust in order to avoid multiple probate administrations in multiple states. 

Through professional guidance, a trust-based estate plan can be drafted. Luhrsen Goldberg has extensive experience with trust drafting and administration.

Simplified Avoidance of Probate

-Combining “Ladybird deeds” and pay-on-death accounts helps most Floridians avoid the need for probate when they pass away. Having in writing provisions for the automatic transfer of all assets upon death and deciding precisely where each asset will go can be done through these documents to avoid the need for families to hire a lawyer to handle the probate process. 

Nominating pay on death, or transfer on death, beneficiaries for all financial instruments is the simplest part of the process. A bank account set up with a designated pay-on-death beneficiary or joint account holder ensures that funds are automatically transferred upon death and are not included as probate assets. Beneficiaries can immediately access all funds if they are listed on every financial account.

To access these funds, a bank requires beneficiaries to bring a death certificate to access the funds. Real estate is automatically transferred through the use of ladybird deeds. A land owner can create a “remainderman” stating who automatically inherits the land property at the time of death of the landowner.

Motor Vehicle Probate Avoidance

Without court supervision, a Florida DMV will generally transfer vehicles to a spouse or child if they are named in a decedent’s will. To transfer a vehicle title without probate after death, families must have:

  • The vehicle’s original title, if available.
  • The Application for Certificate of Title With or Without the Registration 
  • Title transfer fee payment:
  1. Electronic title $75.25 
  2. Paper title $77.75
  3. Additional $2 for any liens on the vehicle.
  • Other required documents can include:
    • A copy of the decedent’s will
    • A copy of the vehicle owner’s death certificate

The simplest way to keep families out of probate is to list the beneficiary on the vehicle title.

Writing a Will in Florida

Florida considers a valid will a written document listing all final wishes, and the will does not require specific wording to be effective. The elements that are most important in a will are:

  1. The testator’s signature 
  2. Concurrent witness signatures
  3. Detailed outline of wishes regarding assets subject to probate

A crucial aspect of a will is that it states who the personal representative will be for managing all affairs after death. Occasionally, personal representatives are required when the decedent passes away due to someone’s negligence to file a wrongful death lawsuit on their behalf. Wills can have instructions regarding funeral and burial services that can give comfort and guidance to family members.

Under Florida law, a will containing a gift, known as a “devise,” has specific rules regarding it. For example, a “homestead property” can only be devised for a spouse or minor children. Additionally, Florida law has strict rules about disinheriting a spouse from their will, and there are specific provisions to provide for a spouse in the event of disinheritance.  Florida Statute section 732.2075 gives a decedent’s spouse the right to an “elective share,” which equals 30% of a decedent’s elective estate. 

In addition to the testator’s and witnesses signatures, the decedent and witnesses should also sign an affidavit at the end of the will in the presence of a notary.  This process of “self-proving” a will eliminates the need for witnesses to confirm that a will is legitimate.  Most Florida will include a second signature from the testator, second signatures from the witnesses, and a notarization. As stated above a will that includes an affidavit of proof signed by the testator, the witnesses, and a notary is known as a “self-proved will.” 

What Happens When a Will is Contested?

Wills and Trusts may be challenged based on incapacity, undue influence, or fraud if anyone believes the will may have been procured through coercion or trickery.  Asserting that a will is invalid due to incapacity, undue influence, or fraud is a lengthy ordeal that can cost an estate, and by extension its beneficiaries, hundreds of thousands of dollars in legal fees and costs.  Once a will is contested, most of the probate administration will stop in its tracks until the challenge is resolved.   

Note on No Contest Clauses: No contest clauses in a will, that is, clauses that penalize an interested person for contesting a will, are unenforceable.   

Careful drafting with an estate planning attorney can avoid many of the pitfalls which can lead to a will challenge.  

How Florida Trusts Work  

A trust can be used as a legal entity to control property throughout the owner’s lifetime and is used to transfer property upon their death. Trusts are diverse and flexible for the owner and provide:

  • Control over how money will be spent after death typically without court oversight
  • Control over how property is to be used after death
  • Protection of assets from potential future liability or creditors 
  • Protection of assets upon divorce 
  • Preservation of government benefits 
  • Avoidance of probate
  • Tax planning 
  • Assurance of confidentiality 

A trust-based estate plan can have assets typically used during a lifetime while assigning a “successor trustee” that can take over the assets in the event of the Grantor’s incapacity and after the Grantor’s death. Wishes of the decedent are carried out by the successor trustee without needing oversight from the courts. 

The trust can contain detailed wishes regarding who will receive property when it should occur, and the circumstances surrounding it. “Special Needs Trusts” or “Supplemental Needs Trusts” can be critical for protecting government benefits from programs that help disabled family members, such as SSI and Medicaid.  

Trust administrations are confidential, but probate administration is not confidential and is made public.  The selection of a responsible successor trustee is crucial for all trust-based estate plans because the successor trustee gains powers that can easily be abused. Florida’s trust code requires that all trustees maintain their “fiduciary duty” by acting in the trust beneficiary’s best interests when administering the trust. A breach of this duty could lead to a lawsuit against the trustee. An estate administration attorney can best advise if a trust is the best legal document for any family’s needs.

Transferring Real Estate After Death in Florida  

Typically, when someone dies, any real estate they own is to be transferred through probate. Someone looking to avoid probate can execute a “Ladybird deed” before the owner’s death. When a property owner is alive, property transferred between them and another party requires a deed transfer. 

A deed identifies:

  • The grantor 
  • The grantee 
  • A legal description of the property 
  • The grantor’s signature, along with two witnesses and notarized.

A person who gives an ownership interest is the grantor, and the person who receives the ownership interest is the grantee. As one of the required signatures, the notary can qualify as the second witness. When the real estate is the grantor’s homestead, their spouse must sign the deed whether they co-own the property or not.

An estate administration lawyer can explain the tax rules surrounding a “ladybird deed” and provide legal details for securely transferring a homestead property. Those who would like Luhrsen Goldberg to draft a Ladybird deed can contact us today.

Do Not Forget to Plan for Physical or Mental Incapacity

One important aspect often overlooked when estate planning is the possibility of incapacitation. If mental capacity is lost through disease, old age, or an accident, families can face obstacles trying to manage finances and medical treatment for them. The use of a “power of attorney” and advanced directives allows family members to handle affairs for an incapacitated person. Important documents and planning for incapacity include:

  1. A durable power of attorney 
  2. A health care surrogate
  3. A living will

When a power of attorney is not in place, an involuntary guardianship may have to be brought to the court before a family member can gain authority to manage the financial affairs of the incapacitated person. Involuntary guardianship cases can be complicated and cost thousands in lawyer’s fees.

An estate administration lawyer can help draft a power of attorney to help friends and family avoid the inconvenience and cost of a guardianship case.  Whoever is chosen as a power of attorney will manage finances, execute legal documents, and sell property, so it is crucial that only a trusted person be granted this position.

Health Care Surrogates 

A health care surrogate grants a separate person the legal right to decide on necessary health care decisions for the incapacitated person. In contrast, a power of attorney makes the financial decisions. When a healthcare surrogate is not chosen, hospitals and doctors do not have to allow family members’ input into decisions around medical treatments. Medical providers and hospitals, on the other hand, recognize the healthcare surrogate’s authority and allow them to make medical decisions for the incapacitated patient.

A healthcare surrogate can benefit from a living will, which is a legal form documenting future medical wishes to be put into effect if the patient becomes incapacitated. Those preferences may include medical decisions regarding resuscitation or the use of artificial nutrition if in a coma. 

How an Estate Planning Lawyer Can Help

Many of the forms listed above are free, so many people wonder why they would pay a lawyer to create an estate plan. In addition to drafting the document, estate planners provide invaluable advice regarding specific circumstances around lifestyle, assets, and after-death wishes. This helps ensure the right plan is in place and provides families with peace of mind that they have protection from worst-case scenarios.

Request a Confidential Consultation With Our Estate Planning Attorneys Today

Estate planning can be overwhelming. Fortunately, those ready to start do not have to go through the process, management, or administration process alone. Contact Luhrsen Goldberg for a confidential consultation with one of our estate planning attorneys. We can help families decide which estate planning services can be most beneficial for protecting their assets. Reach out using our secure online form or call our office to get started as soon as today.