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Miami Estate Planning Law Blog

What types of wills are valid in Florida?

One of the reasons why individuals draft wills is to list the valuable and sentimental property that they have and to document their wishes for what they want to happen with those assets when they pass away. Florida's intestate succession rules apply in instances in which an individual dies without a will in place. This generally means that a decedent's possessions will generally go to their next of kin unless they have drafted a will that states something else.

Many states' laws including Florida's are written to require the person drafting a will, the testator, to be at least 18-years-old. There is an exception to that rule though if the individual drafting the will is an emancipated minor. If they are, then Florida Statute §§732.501, et seq. allows that individual to lawfully draft their own will provided that they have the necessary witnesses present when doing so.

Creating your will: A critical part of your estate plan

If you've decided that it's time to write a will, then you're going to want to know all the things you can do to make it easier. Everyone is aware that making a will isn't always the most pleasant thing to do. It draws attention to the inevitable, and it can be uncomfortable.

However, creating a will is critical. You'll be allowing others to know your wishes even when you can't speak for yourself any longer. A will helps your heirs avoid conflicts and trouble, and lets you know that your possessions will go to the people who deserve them most.

Why your college student needs estate planning documents

If you've got a child going off to college next year, or who recently started college, the last thing on their mind is likely estate planning. However, there are some specific documents commonly included in estate plans that most young people should have once they turn 18.

Estate planning isn't just about designating what happens to your assets after you die. A good estate plan also plans for a person's incapacitation. Who can make medical decisions for them if they can't speak for themselves? Who can handle their financial and legal obligations if they're unable to do so?

What to take into account when choosing a guardian for your child

If you have a child with intellectual or cognitive disabilities that is nearing the age of majority, then you may want to start considering identifying and appointing a guardian for them. Don't worry! Selecting a guardian for your child won't take away your ability to care for your son or daughter. It will simply allow you to rest assured knowing that someone else you know and trust will be able to care for your child if you can't. There are some steps that you'll want to take to carefully select the right guardian.

As you sit down to make a list of potential candidates for this role, you'll want to make sure that you have full command of the different decisions that they may be called to make. Anyone that you appoint to the guardian role may have make to medical, financial, personal and social decisions on behalf of your child.

How 529 plans help create estate planning flexibility

For Florida residents, putting money into a 529 education savings plan can be a way to reduce the size of a taxable estate. At the same time, an individual has the power to dictate who the beneficiary of that account will be. Typically, an individual can provide a gift of up to $15,000 in a given year without having to file a tax form. However, individuals can elect to put up to $75,000 in a 529 account at one time without the need to file a tax form.

Married couples can choose to put up to $150,000 in a 529 account without the need to file any tax forms. However, some of that money may be put back into an individual's estate if the person who made a front loaded contribution dies less than five years after it is made. The same could also be true if the beneficiary of the account passes away.

Why a person might want to create a trust

Florida residents and others might not be comfortable thinking about their own mortality. However, creating a revocable living trust may have several benefits for people today and into the future. For instance, an individual gets to control how the assets inside of the trust are used while he or she is alive. It is even possible to change the trust's terms or revoke it entirely at any time and for almost any reason.

One of the key benefits of a trust after a person has passed is that assets in the trust can likely bypass probate. This means that there is no need for a judge to give permission for assets to pass to beneficiaries. Unlike a will, a trust is not entered into the public record. Therefore, it is unlikely that a creditor or other outside party will learn about a deceased person's finances.

Avoiding estate and gift taxes

Florida residents who have substantial assets might need to navigate the federal estate and gift tax laws. While these laws will not impact many people, they can affect the estates of very wealthy individuals.

The Tax Cuts and Jobs Act was passed in 2017. Part of that law included an increase of the federal estate tax exemption, and the exemption is adjusted annually for inflation. Currently, the exemption is $11.58 million per person. For married couples, that means their federal exemption is double that amount. The marital deduction can be transferred to a U.S. citizen spouse tax-free. While several states have a separate estate tax, Florida does not. This means that residents of Florida whose assets are located in the state will only need to concern themselves with the federal estate tax exemption.

Possible drawbacks of overusing beneficiary designations

Some people in Florida may have retirement accounts and life insurance policies that have beneficiary designations. This is a common way to pass these assets, and it keeps them out of the probate process. However, some people may be encouraged by financial advisers to use similar means to pass other assets as well. Unfortunately, this can have serious repercussions for an estate plan.

Options such as transfer-on-death accounts or payable-on-death accounts for checking, savings, bonds, certificate of deposits or investment accounts also allow those assets to be passed directly without going through the probate process. However, this option is often presented with overemphasis on the advantages of avoiding probate and too little information about potential drawbacks or investigation into how the estate plan might be affected.

Trusts offer options for future flexibility and tax protection

When planning for the future, people in Florida may choose to create a trust to pass on their assets because of the higher level of flexibility, control and privacy that it provides. Trusts can be structured in many different ways, and they can provide funds to multiple generations before the principal funds are distributed, if they are ever distributed individually. When people receive benefits from a trust, they may be unsure how to handle the tax consequences. After all, many people choose to create trusts because of their potential to minimize estate tax consequences for the beneficiaries.

The specific tax effects of a trust may vary depending on the kind of trust that was created as do the options for the trustee in managing the funds. Trusts name a trustee to manage the assets for the benefit of the beneficiary. In some cases, the beneficiary may also be named as the trustee; in other cases, a third party serves this role. The trustee can make different decisions for the money depending on the rights that they have. Some trusts may provide trustees with greater discretion while others provide specific details about how the assets are to be managed.

Dividing tangible items in an estate

One challenge that families in Florida may face after the death of a loved one is dividing tangible items within an estate. These are items that are often unique and may not be easily sold. Some may only have sentimental value, such as photo albums. Many families deal with this by taking turns selecting items, but another family had a unique solution.

Two siblings, the executors, made a list of 742 items. This included their mother's car, a piano, games, cutlery, rugs and more. The list was sent to the other siblings, who all circled the items they wanted. Any unwanted items were set aside to be sold. The siblings then received a list of items they wanted that another sibling did as well. They were all given 500 imaginary poker chips to bargain with, and they were allowed to discuss with one another what they really wanted. In some cases, siblings bid for similar items but only wanted one.

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