Frequently Asked Questions

Estate Planning

What is estate planning and why do I need it?

Estate planning is the process of organizing your legal and financial affairs so your wishes are honored during your life and after you pass away. This includes deciding who will inherit your property, who will make medical decisions if you can't, and how to protect your loved ones from unnecessary court involvement. Without a plan, Florida law decides these things for you, and it may not align with what you want.

What's the difference between a will and a trust?

A will is a document that tells the court how you want your property distributed after you die. It must go through probate, which can take months and becomes public record. A revocable living trust, on the other hand, lets you transfer property to your loved ones without court involvement. You maintain full control of your assets while you're alive, and the trust ensures privacy and a faster transition when you're gone.

Do I really need a trust, or is a will enough?

That depends on your goals. If you want to avoid probate, keep your affairs private, or have more control over when and how your assets are distributed, a trust is usually the better option. A will is simpler and less expensive upfront, but it doesn't avoid probate. Many people use both, a trust for most assets and a will for anything the trust doesn't cover.

What happens if I die without a will in Florida?

Your estate will be distributed according to Florida's intestacy laws. The state decides who gets what based on a rigid formula, which may not reflect your wishes. The process also requires probate court involvement, which adds time, expense, and public exposure to your family's situation.

How can I protect my assets and still qualify for Medicaid?

Florida law allows certain strategies to protect your home and other assets while meeting Medicaid's eligibility requirements. Tools like irrevocable trusts and carefully planned gifting can help you preserve wealth for your family while accessing long-term care benefits. These strategies must be done well in advance, Medicaid has a five-year lookback period.

What is a Special Needs Trust?

A Special Needs Trust is designed to provide financial support for a person with disabilities without affecting their eligibility for government benefits like Supplemental Security Income (SSI) or Medicaid. It can be set up during your lifetime or through your will or trust. The funds can be used for quality-of-life expenses that public benefits don't cover.

What is a power of attorney?

A power of attorney is a legal document that allows someone you trust to make financial or legal decisions on your behalf if you become unable to do so. Without one, your family may need to go to court to get permission to handle your affairs, a process that's both costly and stressful.

What is a healthcare surrogate?

A healthcare surrogate is a person you appoint to make medical decisions for you if you're unable to communicate. This document goes hand-in-hand with a living will, which outlines your preferences for life-sustaining treatment.

What's a living will?

A living will (also called an advance directive) is a written statement of your wishes regarding life-prolonging medical treatment. It gives your doctors and loved ones clear guidance if you're terminally ill or in a vegetative state and can't make decisions yourself.

Can I change my estate plan after I create it?

Yes. A revocable living trust and other estate planning documents can be updated anytime. Life changes, marriage, divorce, new children, relocation, or shifts in your financial situation, often require updates to your plan. Regular reviews help make sure everything still reflects your current wishes.

How much does estate planning cost?

The cost depends on the complexity of your situation. A basic will is less expensive than a full trust-based plan, but it's important to weigh upfront cost against long-term value. Carol offers an initial consultation to review your needs and provide a clear, personalized quote.

How long does it take to create an estate plan?

Most estate plans can be completed in a few weeks, depending on how quickly documents are reviewed and signed. More involved planning, such as Medicaid planning or special needs trusts, may take a bit longer.

What's the difference between a revocable and irrevocable trust?

A revocable trust can be changed or canceled anytime during your life. You keep full control. An irrevocable trust, once established, generally can't be changed. It's used for specific purposes like asset protection, tax planning, or Medicaid eligibility.

Do I need to update my beneficiary designations?

Yes. Life insurance policies, retirement accounts, and bank accounts with beneficiary designations pass directly to the named person, even if your will or trust says something different. It's important to review and coordinate these designations with your overall estate plan.

What happens to my digital assets when I die?

Digital assets, like email accounts, social media profiles, online banking, and digital photos, can be addressed in your estate plan. Florida law allows you to grant access to your fiduciary, but you need to include those instructions in your documents.

Probate

What is probate?

Probate is the court process used to settle a deceased person's estate. It involves validating the will (if there is one), paying debts and taxes, and distributing assets to heirs. Probate is also used when someone becomes incapacitated and hasn't prepared legal documents in advance.

How long does probate take in Florida?

Formal probate administration typically takes six months to a year, though it can take longer if the estate is complicated or disputes arise. Summary administration, available for smaller estates, can be completed in a few months.

What's the difference between formal and summary administration?

Formal administration is the full probate process and is required for estates valued over $75,000 or when the person died within the last two years. Summary administration is a simplified process for smaller estates or estates where the person died more than two years ago.

How much does probate cost?

Probate costs include court fees, attorney fees, personal representative fees, and other administrative expenses. Attorney fees in Florida are often based on a statutory fee schedule tied to the size of the estate. Costs can range from a few thousand dollars to much more for larger or contested estates.

Can probate be avoided?

Yes. Probate can be avoided through tools like revocable living trusts, joint ownership with rights of survivorship, beneficiary designations, and payable-on-death accounts. Proper planning allows your assets to transfer directly to your loved ones without court involvement.

What does a personal representative do?

The personal representative (also called an executor) is responsible for managing the estate through probate. This includes gathering assets, paying debts and taxes, filing required documents with the court, and distributing property to beneficiaries.

Who can serve as a personal representative in Florida?

Florida law allows a spouse, adult child, parent, sibling, or other close relative to serve. Non-relatives can serve if they're a Florida resident. Out-of-state relatives can also qualify if they meet certain requirements.

What if there's no will?

If someone dies without a will, their estate is distributed according to Florida's intestacy laws. The court appoints a personal representative, and assets are divided based on a legal formula, not the deceased person's wishes.

Do all assets go through probate?

No. Assets with beneficiary designations (like life insurance or retirement accounts), jointly owned property, and assets held in a trust typically pass outside of probate.

What is ancillary probate?

Ancillary probate is required when a Florida resident owns real estate in another state, or when a non-Florida resident owns property in Florida. It's a separate probate proceeding filed in the state where the property is located.

Can I contest a will?

Yes, but only under specific circumstances, such as lack of capacity, undue influence, fraud, or improper execution. Will contests must be filed during the probate process and can be legally complicated.

What happens to debts after someone dies?

Debts are paid from the estate before any distributions are made to heirs. If the estate doesn't have enough assets to cover all debts, creditors are paid in a priority order set by Florida law. Family members are generally not personally responsible for the deceased's debts unless they co-signed or are otherwise legally obligated.

Guardianship

What is guardianship?

Guardianship is a court process where a judge appoints someone to make personal, medical, or financial decisions for another person who can't make those decisions themselves. This typically applies to incapacitated adults or minor children who have lost their parents.

When is guardianship necessary?

Guardianship becomes necessary when someone can no longer manage their own affairs due to illness, injury, disability, or age, and they haven't created legal documents like a power of attorney or healthcare surrogate in advance.

What's the difference between guardianship of the person and guardianship of the property?

Guardianship of the person gives authority over personal and medical decisions. Guardianship of the property (also called conservatorship in some states) gives authority over financial matters. A court can appoint one guardian for both, or separate guardians for each role.

What is limited guardianship?

Limited guardianship restricts the guardian's authority to specific areas where the person needs help, such as medical decisions or bill paying, while allowing the individual to retain control over other aspects of their life. It's used when someone is partially, but not fully, incapacitated.

What is plenary guardianship?

Plenary guardianship gives the guardian full authority over all personal and financial decisions for the incapacitated person. It's used when someone is unable to make any decisions on their own.

How is a guardian chosen?

The court considers the person's preferences (if they can express them), family relationships, and who is best suited to serve. Priority is usually given to a spouse, adult children, parents, or siblings. The court will also consider whether the proposed guardian is qualified and willing to serve.

What is an examining committee?

In adult guardianship cases, Florida law requires an examining committee, typically made up of medical professionals, to evaluate whether the person is truly incapacitated and to what extent. Their report is submitted to the court.

Can I avoid guardianship?

Yes. Guardianship can often be avoided by creating a durable power of attorney and healthcare surrogate while you're still able to do so. These documents allow someone you trust to step in and make decisions without court involvement.

What are the responsibilities of a guardian?

A guardian must act in the best interests of the incapacitated person. Responsibilities include making healthcare decisions, managing finances, paying bills, filing required reports with the court, and ensuring the person's basic needs are met.

Do guardians have to report to the court?

Yes. Guardians must file annual reports and accountings with the court showing how they've managed the person's care and finances. The court monitors guardians to prevent abuse or mismanagement.

What is emergency guardianship?

Emergency guardianship is a temporary appointment made quickly when immediate action is needed to protect someone from harm. It's usually granted for 60 days while a full guardianship hearing is scheduled.

Can guardianship be contested?

Yes. Family members or other interested parties can object to a guardianship petition or challenge the appointment of a specific guardian. These disputes are decided by the court after a hearing.

What is guardian advocacy?

Guardian advocacy is a type of guardianship in Florida specifically for adults with developmental disabilities. It's often less restrictive than full guardianship and allows the person to retain some rights while receiving help in areas where they need it.

How do I plan guardianship for my minor children?

You can nominate a guardian for your minor children in your will. If something happens to you, the court will generally honor your choice as long as the person is fit and willing to serve. You can also set up trusts or other financial structures to manage inheritance until your children reach adulthood.

What happens if no one is available to serve as guardian?

If no family member or friend is available or suitable, the court may appoint a professional guardian. Professional guardians are licensed and trained to manage the care of incapacitated individuals.

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