Estate Planning...
"Lives of our loved ones continue after we pass, and our best left legacy is not a burden but a benefit."
At the Law Office of Maggie Jo Hilliard, P.A., it is understood that the estate plan should be based on your desires, family structure, estate size, and the laws governing estates in the State of Florida. An estate plan must be devised with flexibility to some extent and specificity in other respects. It is vital that you regularly seek legal review of your estate documents so that changes in your family and the law can be reflected and considered in the drafting and revision of your estate plan.
There is not an exact equation for drafting a complete and thorough will, but a will should be specifically and unambiguously crafted to ensure your intentions are carried out in the most efficient and accurate methods. Every will must be organized to provide for the beneficiaries of the estate and the extent to which those beneficiaries hold an interest. Furthermore, estate administration should be outlined to make clear whom shall preside as personal representative, and in the case of trusts, the role of the trustee and his/her powers and duties.
Many terms are utilized in discussing an estate plan, wills, trusts and related documents.
Please utilize the list below to better understand the terminology:
(1) The ''Beneficiary'' of an estate or trust is an heir-at-law in an intestate estate, devisee in a testate estate, and the owner of a beneficial interest in a trust. An owner of a beneficial interest in the trust is a beneficiary of the trust and is, in the absence of a conflict of interest of the trust, not a beneficiary of the estate. For more information, see Florida Statute 731.201(2).
(2) ''Claims'' are liabilities of the decedent, whether contractual, based upon a judgment, or otherwise and funeral expenses. These do not include the expenses of administration, estate, inheritance, succession, or other death taxes. Please see Florida Statute 731.201(4).
(3) ''Devise,'' when used as a noun, means a testamentary disposition of real or personal property, and when used as a verb means to dispose of real or personal property by will. It includes ''gift,'' ''give,'' ''bequest,'' ''bequeath,'' and ''legacy''; these words are not defined separately in the Florida Probate Code. For more information, please read Florida Statute 731.201(10).
(4) A ''Devisee'' is a person designated in a will to receive a devise/gift/legacy. This means a person who receives real or personal property and would include a legatee. When the devise is to a trust or trustee, whether existing or created by the will, the trust or trustee is the ''devisee,'' not the beneficiaries of the trust. See Florida Statute 731.201(11).
(5) A ''Distributee'' is the person receiving estate property from a personal representative other than as a creditor or purchaser. A testamentary trustee is a distributee only to the extent of distributed assets or increment thereto remaining in his or her hands. The definition implies a will admitted to probate, and administered to the point of distribution, and will have limited use in will drafting. For more information, please read Florida Statute 731.201(12).
(6) An ''Estate'' is the property of a decedent that is the subject of administration.
(7) ''Exempt property'' is property exempt by homestead and those items included for spouses by statute (if there is a surviving spouse, household furniture, furnishings and appliances in decedent's usual place of abode, up to a net value of $10,000, all automobiles held in the decedent's name and used by him or her or members of his or her immediate family as their personal vehicles, and Florida Prepaid College Program contracts purchased pursuant to Florida Statute 240.551 and/or 732.402(1) and (2). This exempt property is exempt from the claims of all creditors except that it is subject to perfected security interests according to Florida Statute 732.402(3). These rights are available to the surviving spouse, but if there is no surviving spouse, children of the deceased person are entitled to the same exemptions in accordance with Florida Statute 732.402(1). Exempt property is part of the estate. Property specifically or demonstratively devised by the decedent's will to any devisee is not included as exempt property according to Florida Statute 732.402(5). But, people who receive property by specific or demonstrative devise and who would otherwise be entitled to it as exempt property may have the court determine the property to be exempt (See Florida Statute 732. 402(5). In order to secure the expempt property rights, you must comply with procedural requirements under the rule of Florida Statute 732.402(6) and Florida Probate Rule 5.406. One should also note that these rights are in addition to those passing by way of homestead, the decedent's will, intestate succession, the elective share, or family allowance (See Florida Statute 732.402(4).
(8) 'A 'foreign personal representative'' is a personal representative located out of the state or the United States.
(9) "Homestead" is the term indicating the rights provided under the Florida Constitution and statute that state that the homestead property shall descend as other property unless the deceased is survived by a spouse and one or more descendants. In this event, the surviving spouse takes a life estate in the homestead, with a vested remainder to the descendants in being at the time of the death of the decedent.
(10) To be considered ''incompetent'' means a minor or person adjudicated incompetent a court with jurisdiction to make said determination.
(11) ''Letters'' are discussed in Florida Statute 732.201(24) and means the authority granted by the circuit courts to the personal representative acting on behalf of the estate. All letters are deemed ''letters of administration.''
(12) A ''Personal Representative", in accordance with Florida Statute 731.201(27), is the fiduciary appointed by the court to administer the estate and refers to what have been known as primary and ancillary executors and administrators as well as administrators cum testamento annexo and administrators de bonis non.
(13) ''Property'' can be real and personal property, or any interest in that property. It is anything that may be the subject of ownership. For more information, please see Florida Statute 731.201(31).
(14) A ''Residuary devise'' is a devise of assets of the estate remaining after the provision for any devise that is to be satisfied by reference to a specific property or type of property, fund, sum, or statutory amount under Florida Statute 731.201(34). When the will contains no devise that is to be satisfied by reference to a specific property or type of property, fund, sum, or statutory amount, ''residuary devise'' or ''residue'' is a devise of all assets of the estate.
(15) ''Trust'' includes any express trust, private or charitable. It also includes a trust created by judgment or decree under which the trust is to be administered in the manner of an express trust. Excluded from the term, besides constructive and resulting trusts, are custodians for minors under the Florida Uniform Transfers to Minors Act, business trusts, common trust funds and trusts, and other types of fiduciary relationships.
(16) A ''Trustee'' is original, additional, surviving or successor trustee, whether or not appointed by or confirmed by the court. It does not include a personal representative.
(17) ''Will'' includes a codicil and is a document executed by a person in the manner prescribed by the Florida Probate Code, disposing of his/her property upon or after death, including a document merely appointing a personal representative or revoking or revising another will. See Florida Statute 731.201.
For assistance with drafting a will, probate procedures, trusts and estates, please contact The Law Office of Maggie Jo Hilliard, P.A. at (904) 247-7600 to set up a consultation today.