Attorneys Helping Cape Coral and Fort Myers Residents Strategize for the Future

We are estate planning attorneys. We have convenient offices available to our clients in Cape Coral, Fort Myers, and Naples.

Planning for your future is extremely important. Many people think that estate planning is not essential if they do not own a large number of assets. This could not be further from the truth. 

Regardless of whether you have a complicated set of assets or whether you simply want to ensure that your wishes are carried out upon your death, an estate plan is well worth the time and thought required to craft it. A will or trust should be individual to your needs and tailored to achieve your objectives. Although you can download simple forms and other tools to create a plan, they often fail to consider unique aspects of your finances, assets, and wishes. 

At the Martin Law Firm, our Fort Myers and Cape Coral estate planning lawyers have prepared many estate plans for Southwest Florida residents, addressing a wide variety of issues and situations. As a result, we are prepared to help you ensure that you are doing all you can to protect your financial future and ensure that your wishes will be respected.

Our experienced attorneys will assist you in creating an estate plan that will last a lifetime for your family.

Our Florida Estate Planning Guide

Various Aspects of Estate Planning

In general, an estate plan is intended to ensure that your wishes regarding your estate’s disposition happen smoothly and result in a low amount of risk. Estate plans are also intended to provide for certain tax-based considerations and set up an individual to have a sufficient income in the final years of their life.

It is rare for two people to have an identical situation and set of priorities, which means that each estate plan must be drafted carefully to account for your needs’ unique aspects. Some of the most common considerations that may arise include planning for the succession of a family business, ensuring that you will be provided with health care in the event that your health declines, designating powers of attorney in advance, setting up charitable donations, and protecting your assets. 

Our estate planning attorneys also advise Cape Coral, Fort Myers and Naples clients on setting up a probate plan, which involves designating the person or persons who will be responsible for administering your estate upon your death. Although it may seem daunting to plan for all of these variables, we take the process one step at a time and can ensure that you have a full understanding of your options at each juncture.

Common Legal Instruments Used in Estate Planning

According to Florida law, if an individual dies without an estate plan, there is a predetermined method for the division of their assets. In general, your assets will pass to your heirs according to a specific hierarchy. However, many people are unsatisfied with this method and wish to provide for a different division or treatment of their assets upon their death. 

There are two common legal instruments used to help people create an estate plan: a Will or Last Testament and a Revocable Living Trust. 

Last Will and Testament in Florida

A Will consists of a testamentary document that delineates where you want your assets to go upon your death. The will provides instructions to a specific individual regarding the dissemination of your assets, which can include property, money, and real estate.

Purpose of a Will

The primary purpose of a Will is to dictate where you want your assets to pass at your death. 

Under Florida law, a will allows you to:

  • leave your assets to specific people or organizations
  • to appoint a guardian to care for any minor children who are alive at the time of your death
  • to appoint a trustee to oversee your property and the dissemination of your will

If you pass without a valid will, your own property will be distributed according to Florida’s intestacy statutes. This is a basic process that provides the entirety of your property to your closest of kin who are alive at the time of your death, beginning with your spouse and children. If you pass without a spouse or children, your property will go to your grandkids or your parents. 

If you wish for something different to happen, it is critical that you create even a basic will to avoid having your property pass through the intestacy. Depending on your estate’s size, you may be able to set up your will to qualify for summary administration, which is a faster and often less costly method of completing Florida’s probate requirements.

Crafting a Legally Sufficient Will

Many people wonder why they should take the time and effort to prepare a will and to consult with an estate planning lawyer in the process. Florida law allows individuals to execute a will without the assistance of an attorney, but there are many complex issues, requirements, and rules of interpretation that may apply to your situation. Failing to take them into account may result in your will not being found valid or not reflecting your true intent regarding the dissemination of your assets.

Types of Wills in Florida

There are four different types of wills in Florida, each with its own purpose:

  1. Simple Will (Last Will and Testament). The most simple and basic type of will, the simple will, allows the testator to appoint a “Personal Representative” to administer a probate estate and distribute assets to the chosen beneficiaries. When creating a simple will, you can also designate a guardian for your minor children. So-called “holographic,” or handwritten wills, with no witnesses or notary, are not valid in Florida.
  2. Mirror-Image Wills. This type of will, often confused with a “Joint Will,” is two wills, usually written by two married people or unmarried partners. So-called “Joint Wills” are not recognized in Florida. Mirror-image wills have nearly identical terms and identical provisions, the only difference being the spouses’ or partners’ identification of themselves.
  3. Pour-Over Will. Many families have a trust-based estate plan, and for these families, pour-over wills are useful and maybe even necessary. A pour-over will transfers any forgotten or “leftover” probate assets into your trust upon your death. By having both a trust and a pour-over will, you can be sure that all of your assets will be distributed pursuant to your trust upon your death.
  4. Testamentary Trust. This is, for all extents and purposes a trust created from a complex will that does not come into existence until the passing of the testator and the will is admitted to probate. It is funded with trust assets. This type of “will” has fallen out of favor in recent times and is rarely utilized.

Understanding Will Requirements in Florida

According to Florida law, there are a few basic requirements for a will to be valid. 

  • First, you must sign the document in the presence of two witnesses. 
  • Next, these witnesses must sign the will, indicating that they witnessed your signature occurring. You are not required to have the document notarized, but there is an option to create a “self-proving” will, which expedites the probate process after your death. To create a self-proving will, you must complete the aforementioned requirements in front of a notary and have the notary execute an affidavit summarizing the process and the individuals who witnessed and signed your will. 
  • Although it is not a requirement, it is usually a good idea to appoint a personal representative in the will who will be in charge of ensuring that your wishes are carried out successfully. If you do not appoint a personal representative in the will, the probate court will choose someone for you. Depending on the complexity or diversity of your assets, there may be a wide variety of state, federal, or even international laws that apply to the dissemination and taxation of your estate upon your death. 

A seasoned estate planning lawyer can help you navigate these hurdles and avoid any contested matters down the line.

Revocable Living Trusts in Florida

A Revocable Living Trust is rather different from a will because it requires an individual to transfer the legal ownership of their assets to the trust and to appoint a trustee to manage the assets according to a predetermined plan. The individual who sets up the trust can appoint additional beneficiaries to take their place upon their death. Many people prefer this option because it usually avoids the need to go through probate.

Purpose of a Revocable Living Trust

Revocable Trusts or Revocable Living Trusts in Florida should be considered the same thing. In Florida, a trust is an agreement between a grantor and a trustee where the property is transferred to the trustee by the grantor to provide for a beneficiary.

What is fascinating about a trust is the incredible flexibility available to you in crafting your estate plan under Florida law. You really are only limited by your imagination as to what your trust will accomplish.

For example, many of our clients hire our firm because they are concerned about probate in Florida and want an estate plan that avoids probate. You can easily minimize your exposure to probate expenses by creating a revocable living trust and properly funding it.

A Revocable Living Trust in Florida

In Florida, a living trust is a type of revocable trust agreement often used for testamentary estate planning, which Florida residents make during their lifetime for their own benefit and for the benefit of a spouse and/or other designees after their death. Florida trusts are statutorily governed in what is known as the Florida Trust Code.

Generally, a Florida revocable living trust includes:

  • A Grantor (or Settlor or Trustmaker). The grantor is the person that creates the trust and lays out the provisions of the living trust agreement.
  • A Trustee. The trustee holds legal title to the trust assets and is responsible, in the form of fiduciary duty, for ensuring the trust directions are followed and carried out in a fair and reasonable manner.
  • The Lifetime Beneficiary. The lifetime beneficiary is usually the grantor and has full access to income and principal of the living trust during his or her lifetime.
  • The Death Beneficiary. According to the trust, the death beneficiary will benefit from the remaining income and principal of the trust upon the grantor’s death.

A typical living trust is revocable in full or in part, and the grantor can amend any part of the trust while he or she is alive and mentally competent. When the grantor dies, the living trust becomes irrevocable, which means the trust beneficiaries and successor trustees may not change any of the trust provisions.

How to Create a Revocable Living Trust in Florida

Setting up a revocable living trust in Florida is rather uncomplicated when you consider the benefits. Generally, you’ll need to:

  • Decide which type of trust you’ll need, either individual or shared. Single people will need an individual trust. Married people have a choice between making two separate individual trusts or forming a shared, or joint, trust with their spouses. A shared trust is probably the best choice if you and your spouse or partner have joint property.
  • Take inventory and decide what property to include in the trust. Assets potentially available for transfer to a living trust include savings accounts, real estate, vehicles, stocks, and family heirlooms. You can also name your trust as the beneficiary of assets such as your retirement accounts and life insurance policies. 
  • Decide who to select as trustee. You can name yourself or choose someone else, including a professional trustee at a bank, for example. You’ll also need to select a successor trustee who will take over the management of your trust after a trustee’s death. A trustee and successor trustee must make sure your assets are distributed to your beneficiaries according to your trust’s instructions.
  • Decide who will be the trust’s beneficiaries; i.e., who will get the trust property.
  • Create the trust document. This is where the Florida estate planning lawyers at the Martin Law Firm can help. We’ll make sure the trust is drafted properly and help you rectify any mistakes or omissions that may have occurred in the process.
  • Sign the trust document before a notary public.
  • Finally, fund the trust. You can transfer property into your trust with the help of the Florida estate planning lawyers at the Martin Law Firm.

Contact a Knowledgeable Fort Myers or Cape Coral Estate Planning Attorney

If you have been wondering about estate planning or have been intending to set up an estate plan, you should not wait any longer. At the Martin Law Firm, we recognize how critical it is to ensure that your affairs are in order, to minimize the risk of litigation after your death, and to work with an attorney who is equipped to consider the unique aspects of your financial situation. We proudly serve people throughout the region, including in Tampa, Miami, and Naples, and we offer a free consultation to help you learn more about your legal options and how we can help you achieve a more secure future. Call us now at (844) 658-7843 or contact us online to set up your appointment.

Frequently Asked Questions

What is the difference between a Will and a Trust?

In the fundamental sense, a will is a legal document that describes how you’d like your affairs handled and your assets distributed, while a trust is a legal document that creates a fiduciary relationship whereby a grantor gives a trustee the right to hold title to assets for the benefit of a third party. Trusts offer more control of assets, but can be more time-consuming to set up, and must be actively managed. Trusts are frequently used to minimize or eliminate probate expenses. However, due consideration must be given to the costs of creating and maintaining the trust against the potential expenses of probate in Florida. Sometimes creating a trust can be quite the undertaking.

What happens when there is no will?

If you die without a will, your property does not go to the State. This is a common misunderstanding of Florida law for estates. Remember that a will describes the manner of distribution of your assets upon your death. In Florida, if you die without a will, you are considered “intestate.” Intestate means that you do not have a testamentary document. Intestate estates follow the Florida laws of intestacy which mean that your property will pass to your natural heirs. Your natural heirs are your spouse, children, parents, or siblings depending on who survives you. Following the line of descent is initially complicated but once you understand its intent it is actually simple to follow. Many people actually want their property to pass to their natural heirs and so having an intestate estate may be perfectly acceptable to you and your planning needs.

Must all children be awarded at least something from a will, even if it’s only one dollar?

No, there is no law that requires children to benefit from a will, and this type of will clause may actually cause the estate considerable added expense.  It is best to simply state in a will that no provision is being made for that child.

How does a trust avoid probate?

By transferring legal ownership of an asset from the grantor to the trustee, legal title passes from the grantor. When the grantor dies, he or she doesn’t actually “own” the asset and so there is no need for probate to transfer title since the asset is already owned by the trust.

What is “funding a trust”?

All too often we see people who have created a trust in Florida but failed to properly fund the trust. If a trust was created to avoid probate, but if it was never properly funded then there is a failure of purpose. So to fund a trust you need to change the ownership of the asset from the grantor to the trustee. Our attorneys can explain to your how to properly title your assets so they are owned by your trust. This is not a difficult process and it is essential to meet your probate avoidance goal.

Why probate avoidance?

Probate is a public process that takes time and involves expenses in Florida. A probate action in Florida is part of the public record so anyone can see what assets you had and where they went. Additionally, it is much easier for a disappointed relative to file an objection to a will or cause other difficulties to your estate’s administration in a probate proceeding versus trust administration.

Is probate that expensive in Florida?

The expense of probate depends, in part, on legal fees. Legal fees for probate in Florida are set by statute and generally are no more than 3% for the first million dollars in assets in the estate with a percentage decreasing as the estate value increases. The fee for the personal representative is generally the same as that of the attorney. Doing the math, you can see how this can get expensive quickly. Beyond a certain asset base, the cost of creating and funding a trust is offset by the potential future costs to the estate for legal and personal representative fees. If we are only considering probate costs we suggest to clients that a trust may not be needed at an asset base below $300,000.00. Between $300,000.00 and $500,000.00, a trust is worth some consideration, and above $500,000.00 may be a good idea. Your situation is unique to you and no matter what your asset base, you should speak with one of our attorneys for advice.

Should I avoid probate?

It is not always possible to fully avoid probate in Florida. We tell our clients they should focus on minimizing their probate expenses versus complete avoidance. It is a grim life to be excessively concerned about probate and there are frequently minor assets that didn’t make it into the trust. Also, the probate process offers an accelerated statute of limitations for creditor claims which should be seriously considered even if your estate living trust in place.