WILLS, TRUSTS AND ESTATE PLANNING
For taxpayers who die in 2019, there is no estate tax due, or even the need to file a Form 706 Estate Tax Return, as long as their gross assets and lifetime gifts are $11,400,000 or less.
Therefore, the preparation of Wills, Trusts and Estate Planning, for most people, does not involve an effort to limit estate taxes, but rather, focuses on who and how the transfer of assets are to take place upon death.
LAST WILL AND TESTAMENT
A Will designates the beneficiaries who will receive the decedent’s property, how the distribution will be made and designates the Personal Representative (Executor) to carry out the decedent’s testamentary intent.
In order to transfer assets in the decedent’s name, a Petition for Administration must be presented to the Court by the Personal Representative, together with the original Will and a death certificate. This legal process is known as Probate.
During the administration of the estate, the Personal Representative will marshal the estate assets by transferring all bank accounts, stock broker accounts, real estate and other assets of the Decedent into the name of the Estate.
Florida Law requires the Personal Representative to publish a Notice to Creditors and wait ninety (90) days to see if any creditors make lawful claims against the Estate.
After marshalling the assets and paying the legally cognizable debts, the Personal Representative can file a Petition for Discharge, pay the costs of administration and distribute the remaining Estate assets to the beneficiaries named in the Will.
As you can imagine, a Court Probate proceeding is expensive and time consuming.
Florida Statutes provides that the Personal Representative and the Attorney for the Estate are each entitled to be paid reasonable fees from the assets of the Estate. Under F.S. 733.617, a reasonable fee for the Personal Representative is three (3%) percent of the Inventory value of the Estate and under F.S. 733.6171 an additional three (3%) percent Attorney’s Fees is also deemed reasonable. Further, Court costs for the simplest Estate can approach $600.
It can reasonably be expected to take six (6) months to a year and a half or longer to complete the Probate Proceeding.
However, by preparing a Will, you can be assured that your probatable assets will actually be received by your intended Beneficiaries, less debts and the cost of administration.
As a result of cost and time considerations, many people seek alternatives to Probate in order to transfer their assets upon death. Trusts can be such an alternative.
Trusts are generally categorized as Revocable Trusts or Irrevocable Trusts.
The terms of an Irrevocable Trusts cannot be changed and such a Trust is usually utilized for tax purposes, such as placing an Annuity or Insurance Policy in an IRA or other tax sheltered vehicle.
Revocable Trusts are generally used to avoid Probate. A Revocable Trust can designate who will receive the property of the maker of the Trust, known as the Grantor, on death.
Of course, the terms of the Trust can be changed at anytime, including changing the beneficiaries or the Successor Trustee, simply by executing a Trust Amendment.
The Trust is controlled by the Trustee and the Trust will usually designate the Grantor as the Trustee during his or her lifetime with a responsible, trusted Beneficiary, friend, accountant or attorney as the Successor Trustee to distribute the assets of the Trust in accordance with the Grantor’s desires.
It will be necessary to transfer all assets into the Trust in order to obtain the many benefits that Grantors of Trusts enjoy. This means recording Deeds to real estate to the Trust, changing bank accounts, stock brokers accounts and other assets directly into the name of the Trust.
If all assets are transferred into the Trust, there will be no need to probate any Will, since the Decedent will own no assets in his or her individual name that require a transfer.
Rather, the Successor Trustee, with a Death Certificate, will be able to transfer assets in accordance with the directives in the Trust immediately, and without Court supervision.
While the use of a Trust avoids probate, avoids the public disclosure of the decedent’s assets and provides protection against creditors in limited situations, the disadvantage of a Trust is the high cost.
OTHER ALTERNATIVES TO PROBATE
It is possible to avoid Probate without the use of a Trust, however, it will be necessary to title all assets in such a way that upon the death of the owner of the property, there will be an automatic transfer to the intended beneficiaries. It is also possible to title assets in such a way as to permit the owner to retain control and ownership of the assets during his or her lifetime, and provide for a transfer to the intended beneficiary on death without the need to go through Probate Proceedings.
Some of the ways to do this are through the use of Enhanced Life Estate Deeds for real property, transfer on death designations on bank accounts and beneficiary designations on stock brokerage accounts, IRA’s, life insurance policies and other similar assets.
Of course, this description of estate planning is not comprehensive. Every person has many different factors to be considered, and a consultation with a knowledgeable, experienced estate planning lawyer can provide information for you to decide which plan would be best for you.
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