AM I RESPONSIBLE FOR MY DECEASED PARENT OR SPOUSES BILLS?
Generally, no. In the event that you may have signed as a personal guarantee for either your spouse or your parents that you will pay that particular bill, in that instance, yes, but generally, no.
ARE THERE BENEFITS TO LGBT PLANNING?
Absolutely. Everyone wants to be in control of their own assets. They want to make sure that their loved ones, their families, their charities are taken care of without court intervention, the government taking taxes that are unnecessary if proper planning was done. Also, you want to make sure that healthcare decisions are made by the person that you trust to make those important decisions. Ultimately, everybody wants to make sure that their loved ones are financially taken care of upon death. To answer the question, yes.
CAN A WILL BE CHANGED OR REVOKED AFTER MY DEATH?
Generally no, but there are always instances like in a will contest that a will may be revoked or changed if it's proven that the will itself was invalid for various reasons. Number two, the beneficiaries can all get together and sign an agreement to change certain provisions of a will or a trust, which an estate planning attorney could assist you in that situation, and, again, it would have to be approved by the court. But generally, after death, your will or your trust cannot be changed.
CAN I MAKE DECISIONS FOR MY LGBT PARTNER’S REMAINS?
That depends. Number one, if you have a document such as a healthcare surrogate document or sometimes they're referred to as healthcare power of attorneys that you ultimately choose, your significant other, whether it's by marriage or just a domestic relationship, if you appoint them in a legally recognizable document, yes, they can make healthcare decisions for you.
CAN MY LGBT PARTNER MAKE MEDICAL DECISIONS FOR ME IF I AM SICK?
That depends. If you previously executed a legally recognizable document such as a healthcare power of attorney or a healthcare surrogate, designating your spouse or your domestic partner as the person to make those decisions and they're executed with the formalities required by the Florida statutes, then yes, they can.
DOES ALL PROPERTY HAVE TO GO THROUGH PROBATE WHEN A PERSON DIES?
No, and that's one of the reasons why you should have a proper estate plan, whether it be a trust, a transfer on death beneficiary, or having a joint owner. The ways to avoid probate is, number one, having a joint owner, number two, have a transfer on death beneficiary, or number three, having the trust own the property.
DO I NEED AN ATTORNEY TO HANDLE AN ESTATE?
My answer is always yes. It's always good to go to a professional that knows the law in this specific area. And depending on the size of the estate, and if there are other beneficiaries attached, the Florida legislature is going to require that an attorney assist you in this administration.
DO LGBT COUPLES NEED A LAWYER FOR ESTATE PLANNING ?
All couples need an estate planning lawyer to guide them with their options in this particular field such as wills, trust, estate tax, what happens when I pass away, is there a way I can avoid probate and professionals are trained to give people the answers they're looking for otherwise if you try to do it yourself, my experience is you're going to consult a lawyer, but it's always after the fact and at a greater cost.
DO LGBT COUPLES NEED ESTATE PLANNING?
All couples need estate planning. Everyone wants to make sure that their assets are going to go to their loved ones, the ones they care about. They want to avoid probate, which is costly. They want to avoid paying estate tax, which can be costly. They also want to avoid inter-family feuds after you pass away, and the way to accomplish all this is proper estate planning, going to an attorney that specializes in this area of law.
DO LIVING TRUSTS GO THROUGH PROBATE?
Generally, no. One of the benefits of having a living trust is to avoid probate. However, there are always those times when an asset is not retitled in the name of the trust, or the individual opens in a bank account and fails to open it in the name of the trust. In that situation, a pour-over will is like a safety net. It will pick that asset up, and through the probate process, pour it into the trust so it flows through the instructions of that trust.
HOW ARE FEES DETERMINED FOR THE PERSONAL REPRESENTATIVE AND ATTORNEY?
Generally there are two ways that fees are determined, both for the personal representative and the attorney. There's a statutory fee with the legislature that has determined what is reasonable both for the personal representative and the attorney representing the personal representative. Then secondly you could have a separate contract with the attorney stating what his or her fees will be during the administration and that's strictly between the personal representative and the attorney. With respect to the personal representative fees, they can also waive their statutory fee but generally, it's either the statutory fee, or they can take a reduction or waive it at all. To answer your question, statutory or by contract.
HOW CAN AN ESTATE PLAN HELP LGBT COUPLES?
An individual always wants to be in control of their assets. They want their assets to go to their family, their loved ones, their pets, their charities, and if you don't have a proper estate plan, you don't know where your assets are going.
Just recently, the Florida legislature has acknowledged same-sex marriages. With that, there are some benefits. Now, if you do pass away without a will, your spouse ... Now, I'm not talking about a domestic partner, you have to be legally married. Your spouse, if there are not any minor children, will inherit everything.
Additionally, who do you want to make healthcare decisions? I would want my spouse or my domestic partner. Who would you want to take care of your assets if you become disabled, whether it be mentally, physically? You would want your spouse or your domestic partner. So for all those reasons and more, an estate plan will help you in these areas.
IF I AM NAMED AS EXECUTOR PERSONAL REPRESENTATIVE IN A WILL DO I HAVE TO SERVE?
To answer your question, you do not have to serve as a personal representative or an executor. In the event that you do not want to, for whatever reason, generally, I recommend having a backup or a secondary person to take over that position. In the event if there's not a secondary person, the beneficiaries can decide who would be the personal representative or the executor as long as they qualify under the Florida statutes to be that person.
IF I HAVE A REVOCABLE LIVING TRUST DO I STILL NEED A WILL?
Generally with a revocable trust there's a pour-over will. A pour-over will is a little bit different than the last will and testament. It's a pour over meaning if any of your assets are outside your trust upon your death it picks up that asset and pours it over into the trust to follow those instructions of the trust. Secondly, there are certain assets you don't want to put into trusts like an automobile for liability purposes. Additionally, there are also instructions with respect to burial that are usually included in a will. So, yes a pour over will is generally accompanying a revocable living trust.
THE DECEDENT OWED ME MONEY HOW DO I FILE A CLAIM AGAINST THE ESTATE?
First of all, I would seek the advice of an estate planning attorney, because there is a process of filing a claim against a decedent's estate. When I say decendent, I mean the deceased person. There's a form that you can file with the probate clerk as long as that probate is still open, you have not received a notice to creditors, or it's within the period of time allowed for creditors to file claims. In Florida, you as a creditor, if there's not an estate open, you have a right as a creditor to open the estate to seek payment from that deceased person's estate. Again, I would recommend you seek the advice of an estate planning attorney that could guide you in this area.
WHAT ARE THE BENEFITS OF AN LGBT COUPLE HAVING AN ESTATE PLAN?
It gives the individual control over their assets and over themselves while they're alive and also you control who's going to take care of you after death. There are certain things that if you don't take care of them now, then the legislature will take care of it. And if you want specific individuals to inherit your property, then my recommendation is to have an estate plan.
The other main issue, is while you're alive, who do you want to make healthcare decisions for you? Wouldn't you want your spouse or your significant other to be able to make those healthcare decisions for you? What about a living will? A living will is while you're alive. If there are some types of situations where the only means of keeping you alive are artificial devices and there's no quality of life, and you don't want to live that way, you better have a living will giving the doctors the directive to disconnect life support. Otherwise, you're going to be on life support for a long, long time.
And ultimately, it's your life. Your assets. You want to be able to control your life and where your assets go after death.
WHAT ARE THE TYPES OF PROBATE PROCEEDINGS?
Generally, there are three types of probate proceedings. There is a formal testate, meaning when someone passes away with a will, or a formal intestate, when someone passes away without a will. In either one of those situations of formal administration the assets are above $75,000.00, there's also a personal representative or an executor appointed to administer the estate after death. There is a summary administration when the property of the decedent is less than $75,000.00. In those situations, it's an informal proceeding, there's not a personal representative appointed. There is only an order from the court that transfers that particular asset.
The third type of probate proceeding and we call it an ancillary proceeding. Generally, these arrive when the individual that passed away is domiciled or is in another state, a resident of another state where a probate may be pending in that state, but in order to transfer a piece of real property that they may own in Florida, they have to open up an ancillary administration. Again, you have the same financial caps if it's over $75,000.00, this ancillary's gonna be formal. If the asset's under $75,000.00, then it's gonna be a summary ancillary administration.
WHAT ARE TRUSTS?
Sometimes they're referred to as a "Will Substitute". It's a legal agreement or contract on how your assets are going to be transferred, or taken care of, upon your disability or upon your death. Generally, there are three people involved. The person making the trust, which is the settler or the granter. A trustee. The trustee is the individual or corporate entity that actually owns the asset within the trust, also controls that asset while it's in the trust. And then a beneficiary. That's the individual or corporate entity that's ultimately going to inherit that asset upon your demise.
WHAT BENEFITS DOES A TRUST OFFER?
One of the benefits that I often tell my clients, to void probate. No one wants to go through probate. It's a long process, it's expensive. And a lot of times, you don't get your assets right away.
If you have a trust, you don't go through probate. You have more control of your property; meaning, you can specify where your property's going to go, if it's gonna be held in trust for your spouse, for creditor protection, second marriage protection, disability protection, and these same protections can also flow down to the ultimate beneficiaries, maybe your children. A trust also can avoid estate taxes. If it's set up properly, you can avoid paying state and estate taxes. But again, I recommend consulting with an estate planning attorney that can guide you through the benefits of having a trust. But the main is to avoid probate, and to have the most control over your property upon disability and death.
WHAT HAPPENS IF THE PERSONAL REPRESENTATIVE FAILS TO PERFORM HIS OR HER DUTY?
That depends on what duty we're talking about. These are usually called fiduciary duties and they're all decided by the Florida statutes. In the event that a personal representative or executor's not performing their duties, I would suggest contacting an estate planning attorney who can help you determine what avenue would be the best to get that personal representative or executor to perform his or her duties under the law.
WHAT IS A TRUSTEE?
A trustee is either an individual, or a corporate entity that you, as a settlor, which is a fancy legal name for the person making the trust, appoints either himself or herself, or someone else to take control of the trust property upon disability or death.
WHAT IS PROBATE?
Probate is the legal process that an individual will go through to transfer his or her assets if they do not have a designated beneficiary or a transferal beneficiary, or a trust that actually owns the property.
WHAT TYPES OF PROPERTY NEED TO GO THROUGH PROBATE?
Most all property that is owned by the individual, the deceased person, when there's not a beneficiary attached or a transfer-on-death beneficiary or the asset is not owned by a trust.
WHY SHOULD AN LGBT COUPLE MAKE A LIVING TRUST?
I think all couples should have a living trust for a number of reasons. Number one, it avoids probate. that's that long, lengthy, costly legal process of transferring one's assets when there is not a beneficiary attached to it, or a joint owner, or a trust owning it.
Number two, you can set up where you avoid estate taxes in a living trust.
Thirdly, you can tweak the provisions to protect your surviving spouse from creditors, or if your surviving spouse becomes disabled, or if maybe you have children and a child may be on disability, or may have specific issues that you can address more acutely in a living trust. And one of the other benefits? You can amend it at any time. Because life changes and so should your trust.
WHY SHOULD I MAKE A LIVING TRUST ?
You want to avoid probate. You want to have the most control over your assets if you become disabled, or if you pass away. You also want to be able to structure your assets according to what your family needs are. Sometimes you have children that may have issues of their own, that you can set up a special trust for them, and allow their assets to be transferred to them according to your wishes, maybe at certain times. Also, you can creditor protect your assets to your children and your spouses. You can also set up separate trusts, under trusts for state tax purposes. There are a number of reasons why you should have a trust, but ultimately it's to avoid probate and have the most control over your assets while you're alive, and while you're deceased.