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.
Most well-drafted Trusts contain a spendthrift provision-also sometimes called a restraint on alienation provision. Such a provision sets forth special language preventing creditors from attaching or "taking away" the interest of a beneficiary named in a Trust. Florida law enforces spendthrift provisions so long as they apply to both voluntary and involuntary transfers.
As an estate planning lawyer, one of my principal objectives in drafting a client's Will or Trust is to name the beneficiaries which the client wants to receive their estate. Often this will be a spouse or children and in some cases, other family members. What happens if the person named dies before the person who established the Will or Trust? Does the intended devise (gift) go to the deceased beneficiary's children or to someone else? The answer is, "it depends."
As a probate and estate attorney, I'm often asked whether life insurance goes through or is subject to probate. The answer is usually "no." Life insurance is one of those assets that does not normally go through probate. This is due to the fact that the policy names a beneficiary. As a result, at the death of the insured, the death benefits are paid to the beneficiary directly, not to the estate.
As an estate attorney, I sometimes have clients who want to name multiple beneficiaries but do not want each beneficiary to know what the other is to receive. These clients will often ask, is this possible?
As discussed in a previous blog, incentive trust provisions are designed by estate planning attorneys for clients who wish to promote or discourage specific behaviors or lifestyles by their beneficiaries. These provisions make or withhold Trust distributions to accomplish certain intended results. In essence, the provisions act as a "carrot or a stick." They either reward certain behaviors or accomplishments or they punish or seek to deter them.
When someone dies in Florida, assets or property they own can be transferred in several different ways and via several different means, only one of which involves a Will or Trust. This blog will consider several of these different means and how they relate in priority.
One definition of "disclaim" is when a person denies or renounces a claim to some thing or some right. In the context of estate administration, when a person disclaims, they are renouncing part or all of their right to receive under a Will, Trust or by operation of law.
As discussed in a prior blog entry, an Enhanced Life Estate Deed is a type of deed which provides the grantor with certain rights during life, with the remaining interest to go to a named person at the grantor's death. This can be a helpful estate planning tool. However, there are some down-sides to the Enhanced Life Estate Deed. Perhaps some of the biggest negatives arise when trying to get title insurance.
As with most questions under the law, the decision whether a person should leave an inheritance to a disabled beneficiary is that "it depends." However, in most instances, if a beneficiary is disabled or incapacitated, you should consider whether a special needs trust is required.