A no contest clause in a will or a trust simply says that if a beneficiary challenges that will or trust, that particular beneficiary will be disinherited completely. A different term for this type of clause is an in terrorem clause.
The purpose of these clauses is to threaten and intimidate potential beneficiaries into not contesting the will. Many people fear and seek to avoid the possibility of a will contest, which can drag on for multiple years. Defending against these suits can use of much of an estate’s assets. The idea of including a no contest clause is to scare the beneficiary into taking what is left to them in the will and not risk losing it all by contesting the will.
Florida does not recognize or enforce these no contest clauses in wills. This is a matter of public policy. Section 732.517 of the Florida Statutes states that a “provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable.” A separate statute invalidates no contest clauses in trusts.
Nevertheless, these no contest clauses still occasionally appear in Florida wills, even though they are unenforceable. Sometimes these are added by attorneys who know that the clauses are unenforceable, but who know that the existence of the clause might nevertheless prevent a will contest by those beneficiaries who do not know that they are unenforceable. At other times, these clauses appear in Florida wills because the will has been prepared by a layperson either drafting it themselves or using legal form creation software.
A pour-over will is a will that’s made in conjunction with a living revocable trust. A pour-over will is not a stand-alone document but works together with a living revocable trust to effectuate the decedent’s wishes. In Florida, a pour-over will transfers a person’s property and assets that are subject to probate into the decedent’s trust when he or she dies. The name for this process is “funding.” The property that is transferred into the trust is then distributed to the beneficiaries according to the terms of the trust.
The purpose of a pour-over will in Florida is to make sure that the goals of the will and the trust remain aligned. The will ensures that the personal representative places into the trust any property that is not already in the trust. In a pour-over will situation, the personal representative’s main duty is simply to transfer the property from the estate into the trust. Thus, a single document, the trust, controls all the property so duplicate distributions (made on the basis of both the will and the trust) are not made. The trust document will then instruct the trustee how to handle trust assets.
A disadvantage of using a pour-over will is that the property that is included in the will must still go through probate. Probate can be time-consuming and expensive. It can take months before the court allows the transfer of property into the trust. In addition, property that passes through probate becomes part of a public record
If you set up a living trust and are one of the trustees, then you have control over your property. As a trustee, you have a hundred percent control over your assets in the trust.
In a living trust, one person, the “trustee,” holds legal title to property for the benefit of another person, called a “beneficiary.” It is possible for you to be the trustee of your own living trust and keep full control over the property held in the trust.
A living trust is referred to as “living” because you create it while you are still alive. This is in contrast to a trust that is created at the time of your death according to the terms in your will. The main reason people make a living trust is to spare their families the expense and delay of probate court proceedings after their death.
Even if you have a living trust, you should still have a will. The will controls any property that doesn’t make it into your trust. If you acquire property after you have created your living trust, for example, but fail to transfer that property into your trust before you die and you do not have a will, that property will be transferred to your close relatives under the Florida intestate statute.
In Florida, to make a living trust, you start by creating the trust document. It will name you as the trustee and says who will inherit the trust property upon your passing. Then you sign the document in front of a notary public. Then, you transfer whatever property you want to be in the trust to your name as the trustee.
There is no central place where wills are filed before a person dies. It is a private document until the person who made it has passed away. Ideally, the testator already provided a copy of the will to his or her named personal representative before passing away, but this does not always happen. It is in the best interest of a person close to someone passing away to ask if he or she has made a will and where it is.
Very often, the original will is found in a safety deposit box belonging to the person who died. Sometimes the original will is held by the law office that drafted the will. But sometimes locating the decedent’s will can take some creative searching. A close relative may need to search through the deceased persons personal records and documents in order to try to locate the name of the decedent’s attorney. Other relatives and friends might be needed to provide ideas as to where the deceased person stored important files and documents.
After the will is located, it will be filed with the probate court. Once the original will has been filed with the probate court, it becomes a public record and one can obtain a copy from the clerk of court’s office.
Your will can control assets that you own in your name alone at the time of your passing. Property that is controlled by a will needs to go through the probate process. The following are a few examples of property that will be controlled by your will: jewelry, a car that is in your name solely, a bank account that is in your name solely, a brokerage account that is in your name solely, and insurance proceeds that are payable to your estate. In order for someone to take control of these assets as a personal representative and to dispose of them and transfer them, that person will need to probate the will, have the will admitted to the court, and get letters of administration as a personal representative to have the power to deal with these assets.
There are various ways for you to transfer your property outside of your will and the probate process. For example, you could choose to own property with someone else as joint tenants with a right of survivorship. You could make sure you have a named beneficiary for certain insurance policies and retirement accounts. You could retitle certain assets to a trust. All of these options take a certain amount of planning and the consideration of a variety of factors.
A will is legal and valid if it’s been executed with the formalities required of the Florida Probate Code. These formalities require that the grantor, or the person executing the will, needs to sign at the end of the will document. The signature must be made in the presence of 2 witnesses. And these two witnesses must sign the will in each other’s presence. Florida law does not preclude beneficiaries from acting as witnesses. But it can be better if a non-beneficiary acts as a witness to avoid claims that the beneficiary witness improperly influenced the testator.
These requirements of Florida law regarding wills means that certain types of wills are not valid in Florida. For example, a “holographic will” is a will that is handwritten without any witnesses. Another example of a will that is invalid in Florida is a “nuncupative will.” This is a type of will that is made verbally in the presence of witnesses.
If a Florida resident dies without a valid will, that person is considered to have died “intestate.” That person’s estate will be distributed by the probate court according to Florida law. Generally, that means that the estate will be divided among the decedent’s closest relatives according to a formula in the statutes. When a person dies intestate and has a surviving spouse and has no children or only children with that surviving spouse, the surviving spouse will receive the entire estate.
A fiduciary is a person or an entity that is responsible for administering something such as a trust for the benefit of another person. The people for whose benefit the trust is administered are called beneficiaries.
There are a variety of roles and individuals who are legally fiduciaries, but when it comes to wills and trusts law, when speaking of fiduciaries, people are typically referring to trustees and personal representatives.
Florida law imposes a variety of duties on fiduciaries. The most important of these are the duty of loyalty and the duty of reasonable care. The duty of loyalty requires that a fiduciary manages the trust or estate not for his or her personal benefit, but for the benefit of the beneficiaries of the trust or estate. Another violation of the duty of loyalty could occur if a trustee favors one beneficiary to the exclusion of others. The duty of reasonable care requires that the fiduciary manage the assets entrusted to him or her as a reasonably prudent person would, not making wildly unsound investment decisions, for example.
Beneficiaries typically trust fiduciaries to administer the trust or estate in accordance with the law, the relevant documents (e.g., the will or trust), and good morals. But this trust is not always well placed and sometimes fiduciaries breach their fiduciary duties. Under Florida law, if a fiduciary has breached his or her fiduciary duties, he or she could potentially be held personally liable for those breaches.
To help understand what a “durable power of attorney is,” it is useful to understand what a regular “power of attorney” is. In Florida, as in other states, a power of attorney is a legal document by which one person delegates authority to another person to act on his or her behalf. The person who grants the power of attorney is referred to as the “principal.” The person who receives the authority to act on behalf of the principal is called the “agent.” The amount of authority the principal grants to the agent is determined by the specific language in the power of attorney document. It can be broad or narrow.
The power of attorney document can be used to grant to another the ability to perform almost any legal act on behalf of the principal that the principal himself or herself could do. For example, the principal can use the power of attorney document to grant to another person the right to sell his home, have access to his bank accounts, etc.
A “durable power of attorney” document is one in which the power that the principal delegates to the agent survives even if the principal becomes incapacitated. This is different from the typical power of attorney document, which will become ineffective once the principal becomes incapacitated. The power of attorney document must contain special language that makes it durable. Principals can use durable power of attorney documents to allow their agent to make important financial and medical decisions for them once they have become incapacitated. For this reason, if you are giving someone a durable power of attorney to act on your behalf, it is critical that you choose someone trustworthy.
If there is no will at all, the estate is said to pass intestate. In this situation, Florida law has default rules that govern how an estate will be distributed.
Typically, if there is a surviving spouse and that spouse is the parent of all the decedent’s children, then that spouse will receive 100% of the distributions. This means that the children from that marriage will receive no direct distributions from the decedent’s estate.
If it is a non-nuclear family, meaning the decedent had children with multiple partners, then typically 50% of the distributions will go to the surviving spouse, 50% to be distributed among all the decedent’s children.
While we need not go into all the details and possible scenarios here, the Florida intestacy statute does provide default rules that govern distributions for intestate estates in virtually every conceivable family situation. Of course, the distributions that the Florida intestacy statue requires may be very different than what the decedent would have wanted, which is why it is so important to have a will so that your estate can be distributed as you want.
If there is a will, but the will does not govern all of a decedent’s assets, then those assets governed by the will are distributed through the probate process and those assets that are not governed by the will are distributed according to the intestacy statute. This statute designates certain people as heirs and also specifies how much of the intestate estate will pass to those heirs.
If you have more children after you have prepared a will then you need to review the will with an attorney and determine whether the will is silent on the issue or not. A lot of wills say, “I give my assets to my children equally.” That language would include both prior children and children born after the will was prepared.
One very important thing to understand is that the will governs only probate assets. Many times a husband and wife will hold assets jointly, especially key assets like a family home or savings account. When one spouse dies, the remaining spouse becomes full owner of the assets that were previously held jointly. So, those assets are not governed by the will at all and what the will says a subsequently born child will receive becomes irrelevant (at least for those assets).
Some wills don’t address the issue of distributions to subsequently born children at all. In that case, a child born after the will take under the loss of intestacy. But then it can get somewhat confusing because if it is a situation with one marriage and one set of children, under the laws of intestacy, it all goes to the surviving spouse.
In situations where there are children born after a will has been made, representation by an experienced attorney is more important than ever.
When a trust is set up, the primary thing to do is to fund it. You need to transfer the assets into the name of the trust. For an example, a bank account should be retitled from Mr. Jones to Mr. Jones, trustee of the Jones trust. You need to transfer or fund the trust with all your assets in order to avoid probate for those assets.
A will normally contains several important elements. One, it appoints a personal representative or a successor personal representative to do the duties of a personal representative. Two, it directs the disposition of tangible personal property, like all the assets in your home, your jewelry, your collectibles, your heirlooms, and it also directs the disposition of your other assets. If you don’t do it asset by asset, there’s usually a residuary clause that says, “I leave the rest or remainder of my estate to the following people,” normally a spouse. If no spouse, the children. If no children, they name relatives or charities.
When an estate passes testate, this means that the person died leaving a final will. When the estate passes intestate, that means they died without a will.
A trust offers several benefits. The primary one is it’s a private document. It’s normally not recorded in any public record such as a Probate Court. It is confidential among the settler and his beneficiaries. Another benefit is that upon disability or incapacity he’s set up his successor trustees to manage his assets to pay his bills and handle his estate after he’s gone. Another benefit if you’re fortunate to be in a taxable situation you need trust in order to maximize the unified credit deduction amount and other tax planning opportunities available to wealthy people.
Trusts are a legal entity similar to a partnership, similar to a corporation. They have a settler who creates the trust and transfers assets into it. They have trustees who control the assets and administer it during the settlers life or upon death, and there are named successor trustees and then there are named beneficiaries. Trust is a legal entity that can own assets and follows the directions that the settler sets forth in his trust documents.
Self-probating wills are basically wills that are executed in conjunction with a self-proving affidavit. This affidavit simply says that during the time of executing the will, the will was executed with all the formalities required of the law. If you go to probate a will that does not have this self-proving affidavit, you have to contact the original witnesses in order to get the will into the probate process. If you have the self-proving affidavit, you do not have to contact the witnesses in order to get the ball rolling.
Yes, parents are free to disinherit their children in Florida. The only person you’re not allowed to completely disinherit is a surviving spouse, but children are not entitled to inherit from their parents.
A hand-written will is valid if and only if two witnesses are present when you sign it, and they signed it in your presence. If you have a will that is signed by the decedent only, it’s called a holograph will, and they’re not enforceable in Florida. You have to have the two witnesses sign in the presence of the decedent signing. One of the big mistakes is the decedent will do a hand-written will, or type-written on his computer, print it out, sign it, and then go see a neighbor, the two neighbors, and say, “Here, sign here. This is my will.” It’s not valid because they have to see the decedent sign the will and be in his presence.
A will should be reviewed periodically after certain events have occurred:, either there’s a change of law so you need to see an attorney on a regular basis to see if there’s been any changes of law, if there’s been a financial change in your life, assets go up or down or you’ve retired or assets have been disposed of and new assets acquired, if there’s been a change in your family, one of your children have died or a parent gave you an unexpected inheritance. Any of these financial or family matters that change your disposition should be reviewed.
A will is valid until the decedent dies at which point it now has the power to direct the disposition of probate assets. Any assets in the decedent’s separate name will now be subject to that will and the main thing is that the will has no power until that. It’s valid but it has no power until death and that’s the power to control the disposition of decedent’s sole assets.
How long does it take to settle a trust and what can I do if it is not done in a reasonable amount of time?
The length of time it takes to settle the trust really depends on the provisions of any particular trust and what assets you’re dealing with. If the assets need to be liquidated, it can really take up to six months. If it’s a standard revocable trust making outright distributions, it can take much less time. The trust document can also lock up the assets for a very extended period of time and then you would have to consult with the trustee directly.
A revocable living trust avoids probate because the assets titled in the name of the trust are controlled by the trustees, the co-trustees, the successor trustees so that when a settler dies, there is no need to go to the court to ask who owns the assets. The assets are still controlled and under the direction of the trustees.
A living trust avoids probate because all the assets inside the living trust are titled in the name of the trust and upon the death of the settler or grantor there’s no question of ownership. The successor trustee or co-trustee can continue to manage and distribute those assets per the trust instructions. There’s no requirement for a court probate supervision.
You prove a will by having it notarized properly under Florida law. Florida law provides that to prove a will that the notary does an affidavit which the decedent and the two witnesses all swear before the notary that they have previously signed the will in the presence of the two witnesses, and the two witnesses sign in the presence of the testator or testatrix, and then the notary puts a separate affidavit on the will. The advantage of self-proving is that when the will goes to court or goes to probate after the decedent’s death is that the witnesses don’t have to sign a consent or appear before the court to say that they were present during the signing of the will.
The validity of a document is determined by whether it’s executed properly. In order for a will or a testamentary revocable trust to be executed properly it must simply be signed by the grantor at the end in the presence of two witnesses. Then those two witnesses must sign in the presence of each other.
You can find out if somebody has a will several ways. One, the principle way is to contact the probate court in the county were the decedent resided and ask if there’s an open probate and if so, can you get a copy of the will. If a will has not been filed yet and you want to be kept alert to the possibility, you’d hire a lawyer and file a caveat so that subsequently filed wills you’d get a copy of. If there’s no will filed at any time, then you need to ask a family member or a friend if there is a will. The problem is if you’re not a named beneficiary or an heir at law, like a child or a spouse, you’re probably not entitled to a copy so don’t expect one.
A will does not have to be notarized in Florida to be legal. The legal requirements are that the will is signed by the decedent, as the testator for a man, a testatrix for a women, has to be signed by them at the end, and witnessed by two witnesses. The three people who sign, the decedent plus the two witnesses, have to sign in each other’s presence. They actually have to see each other sign the document. There’s no requirement for a notary.
Does it really take less time to settle an estate in which a living trust was used rather than just a will?
Yes, a living trust generally helps to avoid the probate process, so it’s going to shorten the length of the probate proceedings substantially.
The trustee of a trust does not typically have to provide an accounting, the trust document itself will specify whether an accounting is demanded. Beneficiaries of a trust can request an accounting to a trustee, and that trustee will often oblige.
No, if a living trust is set up properly, it will help to avoid the probate process.
If you’re in another state and you want to make a will that’s different from the state you normally reside in, yes, you can have an attorney prepare a will, say, a Florida attorney prepare a will, and you can sign it while away on a temporary job or at school in another state. The will just needs to be witnessed properly and hopefully notarized by a local notary.
A person can quitclaim property to a beneficiary through a deed and there’s two deeds where this can be accomplished. One is a deed where the grantor retains a life of state and names the beneficiary as a remainder one. Another one is to name the beneficiary as a co-owner currently with the current owner. You should seek the advice of an attorney before you name a beneficiary a co-owner today because you may bring in his creditors, you may bring in a marital dispute. There’s advantages and disadvantages of naming a beneficiary a co-owner with right of survivor-ship.
Can I specify that certain people, like a brother or sister, should never receive any of my property?
There are family members such as brothers and sisters, nephews and nieces who have an expectation of inheritance. You can specify that you’re not providing for them in the will or a trust. The important thing is to again discuss it with a lawyer. Brothers and sisters are not normal heirs to an estate. It’s spouse and children. So if you have no spouse and children, and brothers and sisters have an expectation, that needs to be documented, why you put in one brother or sister and not another.
A will can be changed or revoked at any time during the decedent’s remaining life. You would make a change to a codicil and the codicil changes must be witnessed and the same formalities as the original will. I have many people who believe they can just cross something out in a will and initial it, and that’s a codicil, and it’s not. It doesn’t have to be a separate writing, but every change in the will has to be a signature of the decedent and two witness signatures, all done a the same time. You can revoke a will through a writing, signed properly, or you can just physically destroy the will.