Divorce & Estate Planning

If you cannot live with her, do you want her to get your house when you die?  This is where divorce can be part of estate planning. Not everybody needs a will, but if you die without a will while you are still married, your house goes to your spouse.  Even if your will was made before you got married, your spouse is still entitled to half your estate, the same as if you had died without a will. Some couples are “ABD” – All But Divorced – living in harmony separated from each other, but in Florida, unless they are divorced, they are still married.  Should one of them die without a will, that person’s assets get distributed by the State according to the legal formula of Intestate Succession.  Part of that formula is that the living husband or wife is entitled to the homestead property (unless there is a properly executed marital agreement). Divorce does not have to be expensive and it does not have to take a long time.  If both sides are ready to sit down and take the necessary steps to complete the procedure, then a divorce can be over and done with in about […] Read More

Heir of the Dog & Intestate Will

Once upon a time there was a dog who lived in a great junkyard.  This junkyard had everything—broken furniture, old cars, and plenty of scratched up couch cushions.  There were shady spots and sunny spots, and high spots and low spots.  There were places where water collected for a convenient sip, and a vast infestation of tasty rodents.  It was everything a dog could want…and a cat’s paradise. In fact, there was a cat who coveted the junkyard and wanted it very badly for himself.  He had tried to sneak in, but the dog always told him, “No trespassing!” in no uncertain barks.  So the cat decided to wait it out.  Reasoning that cats have more lives than dogs, he figured he would get the junkyard when the dog died. Sure enough, one day the dog succumbed to his mortality.  The cat packed his bags and was all ready to move into the junkyard, but when he got there, a large puppy had already taken up residence. “Who are you?” asked the cat. “Heir of the dog,” answered the puppy. “But the dog had no will,” said the cat.  “How can you possibly be his heir?” At that point, the […] Read More

Where Is My Homestead Exemption?

Once there was an elephant who could remember where he put everything.  He knew where his spectacles were and where he had set the TV remote.  He could even find his car keys at all times, though it was very difficult for him to drive a car, given the fact that he was an elephant. Now the elephant had a son who was always very good to him.  So the father elephant decided to go ahead and deed his house over to his good son.  This seemed like a fine plan at the time; the father and son got along very well and the father wanted the son to have the house immediately upon his death.  However, when the elephants received their tax bill for the property that year, the amount due was quite a bit more.  The father elephant who could find everything was alarmed to see that the homestead exemption missing was from the tax bill. Where could it have gone?  The elephants looked under the table, in the couch cushions, and behind the refrigerator, but they could not find the homestead exemption anywhere. Finally the father elephant realized what he had done.  By putting his house in […] Read More

Words to Live by in Estate Planning

Estate planning has a vocabulary of words you do not necessarily come across in everyday conversation, but they can be handy terms when you are making decisions about asset distribution after your demise.  Here are some basic terms you may find helpful in estate planning: Beneficiary – someone who receives a gift or benefits from a trust Codicil – an amendment or addition to a will Decedent – the deceased person Devise – testamentary gift of real property Heir – person who is a spouse or descendant Intestate – person who passes away prior to creating a will Probate –the way the court verifies the will, makes sure certain debts are paid, and oversees the distribution of a decedent’s property.  Probate ensures that the court does not take shortcuts in asset distribution. While not everyone needs a will, if you decide to make one, make sure it is executed properly with two witnesses who are in the same room with you and each other.  Seek competent legal counsel to review your choices in estate planning, explain terms you might not understand, and to help ensure your will (if you write one) is executed properly. Read More

You Cannot Take It With You…Even If You Do Not Have a Will

What happens if you die without a will?  Answer:  You are still dead…and the State determines how your assets are distributed according to a legal formula.  It is called an Intestate Will. If you pass away without a will, Intestate Succession can run up to the grandparents and down your family tree until an appropriate heir(s) is/are found.  In the absence of a spouse or descendant, property can pass to a parent or sibling.  If there is none of the above, then a person who is a grandparent, aunt, uncle or first cousin may become a beneficiary. In Florida, a will can be typed or handwritten on toilet paper, but in order for it to be valid, it must be signed in front of two witnesses who sign in the presence of each other.  A notary public can join in to make the will “Self-Proving,” meaning the validity of the witnesses should not be challenged when it is time to admit the will to probate. The most important thing about a will is to make sure it is executed properly. Seek competent legal counsel to discuss whether you need a will, and if so, to ensure your will is properly […] Read More

What Is a Self-Proving Will?

It is difficult to execute a valid will by yourself.  It is also difficult to execute a valid will posthumously.  Generally you need some assistance to make sure your assets will be distributed according to your intentions, and you need to take care of it before your deadline. In Florida, a will has to have two witnesses who see you sign the will and see each other sign as witnesses—everybody has to be in the same room.  You can have a little will execution party—you, your two witnesses, and invite a notary public to join in to make your will self-proving. The reason to have a will notarized is to make it self-proving, then the validity of the witnesses will not be challenged later in probate.  If a valid will is self-proving, it can be admitted to probate without further proof, and saves time and expense in tracking down one of your witnesses to the will so that person can give an oath after your death.  Thus a self-proving will minimizes hardship on your friends and family when you are gone.     Read More

What a Will Can Do for You After You Are Gone

Where there is a will, I want to be in it!  You cannot always predict what is going to happen in life, and death can be a real surprise.  A properly executed will puts you in control of what is going to happen to your property.  Generally, you can accomplish the following things with a will: Decide who gets your property (instead of the law making the decision). Name the personal representative (executor) of your will to manage your estate. You may create a trust in a will; whereby, the estate or part of the estate will be kept intact with income distributed or accumulated for the benefit of members of the family or others.  Minors can be cared for without the expense of proceedings for guardianship of property. Real estate and other assets may be sold without court proceedings (if your will adequately authorizes it). Make gifts to charity. Decide who bears any tax burden (instead of the law making the decision). Name a guardian for minor children. Estate Planning has a deadline.  Seek competent legal counsel to discuss whether you need a will, and if so, to ensure your will is properly executed.   Read More

Estate Planning Sans Rubber Chicken Dinner

There are advantages to wills and there are advantages to trusts—whether they are advantageous to you depends on your circumstances. I am not a big fan of the guys who go to the Ramada Inn, give you a rubber chicken dinner and then make you listen to a two-hour commercial to get a trust.  Those sales pitches have been sitting under a heat lamp and you may be better off with estate planning made to order. A Will is a written direction controlling the disposition of your property at death. A Trust can be part of a Will, but can handle only the property that is put into it. In some cases, depending on the size of the estate, tax implications, and your wishes, probate-avoidance methods (including Trusts and Pre-Death Distributions) are appropriate.  However, do not let anyone scare you to death into purchasing an estate-planning package at a hotel ballroom seminar. Not everybody needs a trust and not everybody needs a will.  Seek competent legal counsel to discuss your circumstances to make a plan that best suits your intentions.   Read More

Inheritance of the Seven Kids

Once upon a time, a mother goat had seven kids.  After a home invasion (in which all seven were eaten by a wolf but rescued by their mother) they lived happily ever after.  The seven kids grew up and moved out, and then one day, the mother goat died. Her homestead passed to her grown kids (as there were no minor children or spouse).  While all seven kids were living when she died, two of them died shortly thereafter.  One of the remaining five was very stubborn.  He did not want to wait for all the legal paperwork; instead, he wanted to sell his mother’s house right away and get the money. The stubborn kid was impatient but he was fair.  Despite the death of his two siblings, the grown kid planned to divide the proceeds equally seven ways, benefitting the heirs of his two deceased siblings.  However, even though the money was going to go where it should have gone, it would have messed up the real estate title, rendering the property uninsurable, and therefore not sellable. So the stubborn kid had to go butt his head against the courthouse until his mother’s house went through probate. Depending on […] Read More

Marital Disability

Marital Disability does not mean you get to park in a wheelchair accessible space.  Marriage comes with many benefits, but it also comes with a disability regarding sale of your homestead. There are a lot of different opinions about marriage.  The one the judge has is that you cannot sell your primary residence without your spouse’s permission…even if your spouse’s name is not on the deed. If you bought a homestead before you got married, your spouse does not own that property, but your spouse can prevent you from selling it.  That is not so much a spousal right as it is a marital disability. (Note that if you pass away without a will and with the homestead only in your name, then your spouse and children would share in ownership of the house.  However, if you convey the property from you to you and your spouse, then the property ownership goes solely to your spouse without probate or a will.  Please see an attorney to prepare the paperwork for this transaction to help ensure your intentions are properly fulfilled.)   Read More