Frequently Asked Questions

Florida Wills and Probate

Real Estate

Trusts

Guardianships

Florida Wills and Probate


What is a Will?

A Will is a written instrument containing directions for how the property of the person making the Will (called the testator) shall be divided on his or her death. State law generally requires that the Will be signed by the testator and by at least two witnesses who have no interest in the property passing under it. The testator must state in the presence of the witnesses that the instrument is his or her Will. He or she must also be competent (not insane, senile or mentally disabled) and not acting under duress or under the controlling influence of any person. A signed instrument purporting to be someone’s Will is not officially recognized until the court having jurisdiction over the instrument declares it to be a valid Will after examining it and the circumstances surrounding its execution. The process by which a court determines whether a Will is valid and the distribution of assets per the Will is known as probate.



Who needs a Last Will and Testament?

Anybody who has real or personal property in his or her name should have a legal Will. It is important to obtain a Will within the state in which you reside. Therefore, if you are living in Florida, then you should have a Florida Will.



What happens if I die without a legal will and I own property in my name?

The property will be distributed to individuals specified in the Florida Statutes for intestate estates. This COULD result in your property being distributed to someone unknown to you.



If I put everything in joint names with my spouse, does this avoid probate?

Yes. But this may not be wise. Individuals should discuss their situation with their attorney and then a proper decision can be made as to the best method to follow to accomplish each individuals wishes as to the distribution of his or her estate.



Does a Will have to be probated?

If you die with real or personal property in your name alone then your Will has to be probated. It is important to use an Attorney who understands probate laws within your state. As a Florida Attorney, I am especially familiar with Florida probate law and can file the necessary Florida probate forms for you.



How long does probate take to complete?

A non-taxable estate can be completed within four to five months.



Does an individual have to wait until the completion of probate to receive any property due them under a legal Will?

Some assets have to be held in order to pay expenses and fees but partial distribution is normally made before the termination of probate.



Does a legal Will avoid inheritance taxes?

A properly drawn Will can minimize taxes but cannot avoid taxes. Each individuals case will need to be examined to accomplish his or her goal.



What is a Living Will?

A Living Will is a written declaration authorizing the termination of life support or other medical procedures in the event you reach a point where said services are deemed to be of no value to sustaining your life or the quality of life that you desire. The exact text of the Living Will is set forth in the Florida Statutes.



Real Estate


In a residential real estate transaction, who pays the cost of closing?

The party who pays each closing cost is determined by the contract between the parties. Closing costs can be part of the negotiations of the terms of the contract.

Which party pays for the title insurance for a closing?

Under a Florida Bar-Approved Contract, the SELLER normally pays for the title insurance.



Why do I need Title Insurance?

Title Insurance provides you with an insurance policy guaranteeing that you have a good and marketable title to your real property. If a title defect or dispute arises during your ownership of the property, the Title Insurance Company will pay for any loss incurred due to a title defect, not excluded from their coverage, up to the face amount of your policy.



Will the party paying for the title insurance be entitled to a reissue credit?

This is a question that has to be determined on each closing.



Will the buyer be entitled to a simultaneous issue for lender insurance?

If the real estate and mortgage closing are closed at the same time, the lenders title insurance will be issued at a simultaneous rate.



How are taxes and other yearly charges handled at a closing?

Again this is determined by each contract. Under a Florida Bar-Approved Contract, the items are normally prorated to the date of closing.



Are Florida Real Property taxes paid as of the date of closing?

Florida Real Property taxes are paid in arrears and normally they are prorated as of the date of closing. Usually a Tax Proration Agreement is used since we will not know what the exact tax amount will be until after the tax bill is issued around November 1 each year.



Who prepares the closing statements and other documents for a closing?

The closing attorney is responsible for preparing all documents for the closing and issuing the title insurance. He or she also should resolve any title problems. The closing attorney will also get inspection reports,termite reports, make certain there is insurance coverage, and order and examine the survey. He will also normally preside at the closing.


Trusts


Does a trust avoid probate?

Yes, if properly drawn.



Does a trust avoid inheritance taxes?

No, however a trust properly drawn may minimize these taxes.



Is a trust more expensive than a Will?

Generally a trust is more expensive to create than a Will.



Does a trust save time in the distribution of property to beneficiaries of the trust?

Generally distribution is quicker under a trust but new Florida Statutes affect procedures under a trust and this issue should be discussed with your attorney.



Do you have to transfer assets into a trust?

A trust will not control or affect any property that is not transferred into the trust.



If I have a trust do I need a Will?

Not necessarily, however if any of your property is not in the trust then a court proceeding may have to be opened. It is very common to have what is called a Pour Over Will; this leaves property not in the trust to the trust.



Can a trust be amended?

A Revocable trust can be amended. An Irrevocable trust cannot be amended. These two types of trusts should be discussed with your attorney.



Guardianships


What is Guardianship?

When a person suffers from a legal incapacity, guardianship is the court proceeding by which another person (the guardian) is appointed to act on behalf of and tend to the affairs of the incapacitated person.



When do I need a guardianship?

When an individual, through advanced age or by an accident, becomes unable to manage his affairs it may become necessary to have a guardian appointed.



Can you avoid a guardianship?

A guardianship can sometimes be avoided by using a Statutory Durable Power of Attorney.



How is incapacity determined?

Since minority is solely a factor of age, any person under the age of 18 is incapacitated by minority without any further determination. In the case of an adult, a person’s incapacity must be determined through a court proceeding. In that proceeding, a panel of three mental health professionals is appointed to examine the individual and report to the court. An attorney is also appointed to represent the incapacitated individual. A person may suffer from limited incapacity or total incapacity based on the findings of the medical panel.



How do I plan for incapacity?

In a Will or Trust, you can provide for the appointment of the guardian and the creation of a Trust to manage the property of your children if you were to die before they reached majority. Creating a power of attorney will allow someone to act on your behalf with regard to certain matters in the event you become incapacitate. Through a revokable trust, you can provide for more comprehensive management of your property in the event of your incapacity. You can also indicate the person you want to be your guardian if guardianship should ever be necessary.