ESTATE PLANNING
Finding the Right Estate Planning Tool for You
Abosch Law is dedicated to helping individuals and families identify, understand, and set up the tools they need for proper estate planning. Individuals with minimal assets may find a simple will is all that is needed. Families with significant assets, or specific elder law or disability planning goals, may need multiple trusts. Attorney Mila Abosch works with clients to develop a customized estate plan that meets their unique needs and goals.
Wills
Whether you create one or not, everyone has a will. Florida’s intestacy statute lays out a generic distribution of your assets if you die without a will. No, the state does not keep your assets. But this generic distribution is rarely right for you. It is not customized to your family. It offers no protection for assets going to irresponsible or special needs beneficiaries. It does not properly address assets going to minors, and it may not appoint the right people to distribute your assets. For all of those reasons, a properly customized will is recommended for every client.
What Happens if I Die in Florida Without a Will?
If you die without a will (intestate), the State of Florida determines how your assets get divided and who your beneficiaries will be. Florida law divides and distributes your assets strictly based on how closely potential heirs are related to you. The law does not care about your actual relationship to a potential heir.
For instance, if you are in a long-term relationship with someone, and you have children from a previous marriage, and you pass away without a will or other estate planning instrument, your children will inherit all of your property and your partner will get nothing. If you are the sole owner of your house, your children would have the right to remove your partner from it.
Can’t I Just Tell My Children How I Want My Property Divided?
No. Without a will in Florida, a judge decides who handles the administration of your estate. Without a will, Florida law predetermines who your beneficiaries will be. For example, if you die without a spouse and have three adult children, each child receives one third of your probatable assets, even if one child has been estranged from you for years.
What Is a Personal Representative in Florida?
Your Personal Representative (called the executor in other states) is the person, trust company, or bank you name in your will to administer your estate. Their duties include identifying and safeguarding your assets, notifying and paying creditors, distributing assets to beneficiaries, and paying taxes and fees.
The Personal Representative can hire a probate lawyer, CPA, and other professionals to help with these steps, and is required to report periodically to the Probate Court.
How Do I Select a Personal Representative?
This is easy for some people, harder for others. You need to weigh the person’s level of responsibility and time constraints. If you’re considering naming several co-Personal Representatives, all your adult children, for example, think through whether they can work together amicably or if it will create friction.
Who May Serve as a Personal Representative in Florida?
Florida allows you to choose a Personal Representative who lives out of state, but only if that person is a relative by blood or marriage. Mila Abosch can help you think through these issues so you’re comfortable with your choice.
What Are the Duties of a Personal Representative in Florida?
In Florida, the primary duties of a Personal Representative include:
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Gathering and accounting for all of the estate’s assets
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Publishing a notice in a newspaper for creditors, as required by law, and paying legitimate creditor claims
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Arranging for final tax returns to be completed and filed
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Distributing assets according to the will or intestacy law
This is an overview. When we meet with a Personal Representative, we can advise on any additional duties that apply.
Is a Will from Another State Good in Florida?
Not necessarily. Laws governing wills vary by state and change over time. If your will was created in another state, have it reviewed by an experienced Florida estate planning lawyer.
A Will Is Not a Do-It-Yourself Project
Wills must conform to Florida law and clearly reflect your wishes. It may be tempting to use do-it-yourself forms, but a last will and testament is exactly what it sounds like. It’s the last thing you’ll do. If a mistake is found after your death, there’s no second chance to fix it.
Living Wills
A living will spells out your wishes if death is near or if you're in a persistent vegetative state. It addresses the sensitive question of whether you want life-prolonging treatment, and food and fluids, at the very end of life, and whether your body should be kept alive once your brain no longer functions at a cognitive level. It also addresses pain medication and withholding life-sustaining support when that support would only prolong dying.
By preparing a living will, you express your wishes and spare your family from having to make these decisions for you. A living will is as much a comfort to your family as it is to you.
Revocable and Irrevocable Trusts
There are many forms of trusts, both revocable and irrevocable, used for a variety of purposes and goals. As with a will, the trusts we recommend are tailored to your goals and assets. Abosch Law will help you determine which type of trust fits your needs and help you appoint the right trustee.
Revocable Trusts
Revocable trusts are what most people picture when they hear the word "trust." In many ways, they take the place of a traditional will. They can be modified throughout your lifetime, and you still have access to the funds. Advantages of a revocable trust:
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Eliminates the need for probate
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Creates a smooth transition plan for when the grantor becomes incapacitated or dies
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Avoids the delays typically associated with probate
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Can be revised at any time, as long as the grantor is alive and has capacity
Irrevocable Trusts
An irrevocable trust ordinarily cannot be modified by the person who created it. These trusts remove ownership of the assets from the grantor, preserving the assets while removing tax liability and income constraints on eligibility for government benefits. For this reason, irrevocable trusts are often used alongside Medicaid planning and elder law.
Common Types of Trusts
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Irrevocable life insurance trusts: Life insurance policies are subject to estate taxes at death. This trust takes the policy out of your name during your lifetime, removing it from your estate and protecting it from creditors.
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Spendthrift trusts: Popular with people who want to leave money to a beneficiary they believe will spend it unwisely. A trustee controls the trust and oversees distributions, protecting the beneficiary from their own choices.
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Charitable remainder trusts: Useful for donating property or other assets to a charity upon death, and can also provide income benefits to loved ones.
Power of Attorney
A power of attorney is a legal document that grants someone you choose the power to act on your behalf. Ordinary powers of attorney end if you become mentally incapacitated, so it's important to have a durable power of attorney, which stays in effect through incapacity.
Financial Power of Attorney
Gives someone the authority to handle financial matters such as paying bills, managing investments, making financial decisions, and filing tax returns.
Waiting to address estate planning and incapacity planning is a mistake. Life circumstances can change without notice, and the cost of not being prepared is high.
Specific Power of Attorney
Gives someone the authority to handle real estate matters such as paying bills, managing utilities, communicating with contractors, and selling real property, including executing a purchase and sale agreement.
Health Care Surrogate
A Florida health care surrogate designation is a written advance directive in which you, the principal, name a trusted adult to make health care decisions on your behalf. It can authorize health care decisions, access to health information, or both, within the scope you grant.
Your surrogate may consent to, refuse, or withdraw consent for health care on your behalf, within that authority. The surrogate acts as your decision maker, not as an independent authority, and is expected to act according to your known wishes and best interests.
Many clients want to name two people, often two adult children, as co-surrogates, since they trust both, the two get along, and both are willing to serve. That's understandable. Notwithstanding, under Florida's health care law, you may name only one primary health care surrogate. You may, and should, name an alternate surrogate as backup, who steps in if the primary surrogate is unwilling, unable, or reasonably unavailable to act.
Emergency Planning
Regardless of your age or wealth, Mila Abosch advises every person to have an emergency plan prepared. An emergency plan ensures that you, not the government or the courts, decide:
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Who has access to your bank accounts
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Who has access to your financial or investment accounts
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Who has access to your medical history
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Whether to keep you on an artificial life-sustaining device
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Who will care for your minor children
Emergencies can't be foreseen, but they can be planned for well in advance. Like any form of insurance, we hope you'll never need your emergency plan. But the need for one is real, for everyone, and it starts now. We encourage you to connect, listen, and explore the best ways to protect yourself and your loved ones.
Probate Avoidance
Probate avoidance is a key part of many Florida residents' estate plans. As Florida estate planning attorneys, we can evaluate your best options for avoiding probate as part of your plan.
Why avoid probate?
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The hassle factor: It can be time-consuming and inconvenient for your heirs.
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The cost: Probate fees can needlessly drain an estate of assets that would otherwise pass to your heirs.
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Lack of privacy: Florida probate is a public process. Many families find that objectionable, and because it's a matter of public record, it's easier for a disgruntled beneficiary to mount a will challenge, create obstacles, and delay your estate's administration.
When you meet with Mila Abosch, we'll discuss your goals and assess your options for probate avoidance within the broader context of your financial and family situation.
Probate avoidance strategies may include:
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Establishing a revocable living trust or an irrevocable trust
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Owning assets jointly with rights of survivorship, so the asset passes to the co-tenant without probate. This protects you only when the first spouse dies, the asset is still probated when the surviving spouse passes, unless other plans are made. Owning assets jointly with an adult child is generally avoided, since it exposes the asset to that child's creditors, and owning with multiple children adds further complications.
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Owning assets as tenants by the entirety, married couples only, so the asset passes to the co-owner when the first spouse dies, with no probate needed
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Naming death beneficiaries for your assets, so they pass automatically without probate
The titling of your assets has to be considered within the broader context of your estate plan. An IRA or other retirement plan needs special treatment when naming death beneficiaries. Generally, the death beneficiary of an IRA or retirement plan should not be your estate. If a trust is the beneficiary, it must be properly drafted to meet IRS regulations.
HOW CAN WE HELP?
VISIT US
Palm Beach County Address:
601 Heritage Drive, Suite 508
Jupiter, Florida 33458​
Fax: 954.446.1826
Broward County Address:
521 E. Commercial Boulevard
Oakland Park, Florida 33334
Office: 561.623.5456
Fax: 954.446.1826
For any inquiries, please fill in the following form: