Article X, Section 4 of the Constitution of Florida provides protection against the claims of creditors for a person's homestead, i.e. their principal residence. In essence, if a homeowner owes money to a creditor, that creditor cannot attach or force sale of the residence in order to receive payment. The same concept applies if the owner dies owning a homestead. In other words, if a homeowner owes a creditor (such as a credit card, medical bills, etc.), when the person dies, the creditor usually cannot collect against the homestead. The homestead is exempt form the claims of creditors.
In today's era of on-line forms, office supply stores, and software, it is becoming increasingly more common for people to try to prepare their own estate planning documents. Whether it is a simple Durable Power of Attorney, a Living Will, a Last Will and Testament, or a Trust, there are plenty of ways that people can try to create their own estate documents. In our practice, we often see this result in an outright DISASTER!
If parents with minor children die, a Guardian will be appointed to raise and care for the children. Parents have the right to designate who will be appointed Guardian--so long as the parents do so before they die. If they do not, then a court will make the decision.
Florida, like many states, has a convenient statutory provision when it comes to dealing with tangible personal property (items such as jewelry, furniture, keepsakes, etc.) through estate planning.
When person establishing a Trust (soemtimes called a "Settlor") does not take the steps necessary to fund the Trust, in most instances a probate will be necessary in order to allow the transfer or liquidation of those assets. This would apply to most assets which are titled only in the Settlor's name and which do not have a beneficiary or a POD designation.
The provision in the Will or Trust which designates what happens to the "rest, residue and remainder" of an estate after specific devises are made is sometimes referred to as the "residuary provision" or "residuary clause."Every Will and Trust should include a residuary clause. This is the provision that acts as the "catch all" for all remaining assets or property not specifically distributed. In many estates, the residuary clause is where the bulk of the assets are devised.
I recently broke my crown. I'd worn the crown for a few years and it served me well. However, people noticed when I broke my crown because I was unhappy and had a pained look on my face. No, I'm not talking about the kind of crown that rests on your head---I wish I had one of those but it wasn't in the genes! The crown that I broke is of the 'dental" kind. When it broke, I learned a valuable lesson which can be applied to my estate planning law practice. Don't put things off!
In Florida probate, certain types of disputes are considered adversary proceedings. This designation has several implications, including that fact that the Florida Rules of Civil Procedure apply. In effect, an adversary proceeding proceeds as if it were a civil lawsuit within the probate. In particular, the parties can conduct discovery, including Requests for Production of Documents, Interrogatories, and taking depositions.
Many times clients who have a Living Trust ask whether they also should also have a Last Will & Testament. After all, doesn't the Trust do essentially everything without needing the Will? Most experienced estate planning lawyers would agree that the answer is a resounding "yes." Even though you have a Trust, you should still have a Will--a special kind of Will often referred to as a "Pour-Over Will."
One of the most common misconceptions I run into as an estate planning lawyer is that many people think that if they have a Last Will and Testament in Florida, probate will not be necessary. The reality is that a Will sets forth the deceased person's wishes--such as designating the beneficiaries and the Personal Representative to oversee the estate. In essence, the Will acts as the "roadmap" for the probate court to follow. But the important thing to understand is that the Will is not self-implementing--it is the power given by the probate court that implements the wishes set forth in the Will.