Miami Estate Planning Attorney

Estate planning is, quite simply, planning for the effect of your own death or incapacity on your loved ones. Although estate planning is commonly associated with wealthy people, just about any adult could benefit from one. When it comes to creating an effective estate plan, the Florida estate planning attorneys at Lorenzo Law have got your back.

Typically, a complete estate plan will include the following documents:

• A last will and testament
• A living trust
• A durable power of attorney
• A durable health care power of attorney
• A living will

A skilled Miami estate planning lawyer can help you prepare all of these documents in a manner that will avoid nasty surprises down the road..

Last Will and Testament

A last will and testament is a document that tells the probate court how you want your assets distributed after you die. Most wills also appoint a personal representative(also known as an executor) who will be responsible for distributing its assets to beneficiaries. If your spouse and/or minor children survive you, they are entitled to a share of your assets even if you don’t mention them in your will. Your will should also appoint guardian for your minor children..

In most cases, Florida law requires that a probate attorney represent your estate during the probate process.

Living Trusts

Probate takes time and effort to administer, and your beneficiaries may have to wait to take possession of their share if your assets are subject to probate. Forming a living trust during your lifetime is a way of keeping your assets out of probate after you die, so that your assets can be distributed immediately.

A living trust could offer a particular advantage if you have assets scattered across several states (and thus subject to the jurisdiction of several probate courts). Since a court doesn’t get involved in the distribution of assets from a living trust unless a dispute arises, it doesn’t matter so much where in the US your assets are located. You can also set up the trust so that you are free to use its assets during your lifetime.

Living Wills

A living will is a document that authorizes your doctor or someone else you designate to terminate life support systems, or to refrain from certain types of medical treatments, if you are in a coma, in a vegetative state, mentally incompetent or unable to communicate your wishes. A living will takes effect only when the doctor decides that you are unable to make or communicate your own health care decisions.

Power of Attorney

A durable power of attorney is a document in which you appoint an agent and empower him or her to act on your behalf and even sign documents for you. Depending on its terms, your agent might have the authority to sign contracts on your behalf, sell your property or pay your bills, among other activities. A power of attorney expires when you die.

A durable health care power of attorney is a special kind of power of attorney, also known as a Health Care Surrogate or Health Care Proxy, that allows someone to make healthcare decisions for you in case you are incapable of making them on your own (you are in a coma, for example, or you are unable to communicate). Unlike a living will, it does not express your preferences — it merely appoints an agent.

Why You Need an Estate Lawyer

It is probably not a good idea to try to create your estate plan on your own. There are many good reasons to hire an estate lawyer for this task; following are only a few:

• It will probably save you money in the long run.– in taxes professional fees and court costs.
• Creating an effective estate plan is complex and time-consuming. Florida estate law is full of legal nuances, and missing one could result in dire consequences that you will not even live to see — your will being invalidated, for example.
• There are no second chances. If you die without an effective estate plan in place, you won’t get a “do over.”
• Objectivity: No matter how hard you struggle to maintain objectivity, it almost always helps to seek the counsel of someone who has no stake in the outcome and therefore has no strong biases to overcome.
• Document drafting skills: Estate plan documents must be drafted carefully to avoid unintended consequences. If one of these documents gets to court for some reason, the judge who interprets it will probably be a former attorney who has been taught to “think like a lawyer.” So do we.

Our Practice Areas

Our firm handles cases in the following practice areas, among others:

• Drafting and reviewing estate planning documents
• Probate administration and litigation
• Estate planning and probate
• Estate administration
• Probate and guardianship
• Trust litigation
• Personal injury

Frequently Asked Questions (FAQs)

What happens if I die without a will?

If you die without a will, or if your will is invalidated by the probate court for some reason, your property will be distributed according to Florida intestate succession law. In this case, your assets will be distributed to your closest relatives according to certain rules. If you leave behind a spouse and children of that spouse, for example, your spouse gets everything. Another rule applies, for example, if you leave behind only a spouse and stepchildren.

What kind of information do I need to provide you with to create a will and a living trust?

At the very least, you will need to provide the following information:

• A list of your assets and their approximate values;
• Your current marital status;
• The names and ages of your beneficiaries;
• If you have minor children, the ages at which the children will actually receive the property
• The exact shares of your estate that each beneficiary will receive;
• The name of the guardian you appoint, if any, for your minor children in case you die before they become adults; and
• The name of the people or organizations to appoint as personal representative of your estate and trustee of your living trust (you can appoint yourself trustee).

What are the duties of a personal representative of an estate?

The personal representative of a probate estate (also known as the executor) is responsible for:

• Identifying and securing all estate assets.
• Identifying creditors of the estate and notifying them that the estate has been opened.
• Pay estate creditors out of estate funds, and object to suspect creditors claims.
• Collect any amounts owed to the estate.
• File tax returns and pay any taxes on behalf of the deceased and the estate out of estate funds.
• Pay the estate’s administration expenses out of estate funds.
• Distribute the remaining estate assets to the beneficiaries as determined by the probate court.
• Close the probate estate.by notifying the probate court that all estate assets have been distributed.

Will I have to pay state inheritance tax or federal estate tax?

Florida does not levy inheritance tax. If you have property situated in another state (a vacation home, for example), that state might levy inheritance tax. The IRS levies estate tax only on the value of an estate that exceeds the estate tax exemption that is in effect in the year that the estate owner died ($11.4 million in 2019, for example). Estates that are subject to estate tax pay an average of 16.5 percent, but only on the value of the estate that exceeds the exemption.

What is the gift tax?

The gift tax is, as the name indicates, a tax on gifts that you give. The motivation behind the tax is that if no tax was imposed, people would give away their property to their beneficiaries during their lifetime in order to avoid estate tax after they died.

It works like this: You can freely give up to $15,000 per person per year (as of 2019). If you exceed this amount, you will have to fill out a gift tax return, but you won’t have to pay gift tax unless your cumulative lifetime excess giving exceeds the lifetime gift tax exclusion, currently set at $11.4 million — not coincidentally, exactly the same amount as the estate tax exclusion. There is no limit on the amount of gifts spouses can transfer to each other.

At what age should I create my estate plan?

You must be 18 to execute a will.  After that, the best time to begin creating your estate plan is while you still can. Once you die or lose mental capacity, it will be too late to set up an estate plan. The risks of waiting too long to set up an estate plan include:

• You develop a serious illness or are involved in an accident that shortens your expected lifespan to a few more weeks or months, and renders you unable to communicate. Because of this, you cannot make medical decisions on your own. Your relatives, sincere but misguided, opt to have you kept alive on machines and desperate medical interventions, rather than let you expire naturally. This causes you additional suffering but only lengthens your lifespan by a few weeks.
• You develop an illness that gradually degrades your mental capacity. You draw up a last-minute estate plan in the early stages of the disease, and after you die one of your relatives challenges your will and trust by claiming that you lacked mental capacity. Your relative wins, and your estate is distributed in a manner that you did not intend.

What are the requirements for a valid will?

In Florida, the requirements for a valid will are as follows:

• You must be at least 18 years old.
• You must be of “sound mind” , meaning that you cannot be mentally incapacitated.
• Your will must be memorialized in written form, and you must sign it.
• Your will must also be signed by at least two adults who witnessed you signing it.
• Although it is not necessary to have your will notarized, if you do so, the court will not have to contact your witnesses to validate your will.
• The probate court must accept your will as valid.

These formalities must be followed exactly — some courts will disallow a will for only a small defect (one of the witnesses cannot be contacted, for example).

Is it necessary to make a court appearance during probate?

Not most of the time. Most wills are probated simply by submitting documents and communicating with the court through email, etc. Even your lawyer is unlikely to need to make a court appearance unless a dispute arises.

What are the grounds for contesting a will?

The most common grounds for contesting a will are:

• Lack of witnesses/signatures.Florida law requires you to sign your will in the presence of two witnesses, who must also sign your will.

• Lack of capacity.At the time you sign your will, you must have sufficient mental capacity to understand the nature of your assets, the reasons why you are selecting certain parties as your beneficiaries, and the nature and effect of signing a will. You may lack capacity if, for example, you suffer from dementia.

• Undue Influence.Undue influence occurs when you are pressured into executing a will in favor of certain beneficiaries, typically in derogation of a long-standing plan to distribute your estate to close relatives. Think of a live-in offspring who convinces her mother to “cut off” the other children by threatening to abandon the mother by moving out; a healthcare worker who threatens to cut off medical care unless his wishes are complied with; or a church pastor who says “God will be angry if you don’t leave your entire estate to the church”. 

• Insane Delusion.  In an insane delusion, the person who makes out their will creates or changes an estate plan based on an obviously false belief. Imagine a paranoid testator cutting his daughter out of a will because he believes she has been possessed by a demon, for example.

• Fraud.Fraud occurs when someone else convinces the testator to create or amend a will based on some sort of misrepresentation. Suppose, for example, that  one child convinces his father to disinherit a rival sibling by falsely asserting that the sibling is a drug addict who will spend his inheritance on cocaine.

When should I update my will?

The three main red flags that should trigger the updating of your estate plan are changes in family status (marriage or divorce, for example); changes in your property (you sell your house, for example, or take someone’s name off of a title) and changes in beneficiaries (a beneficiary dies, for example).

How do you amend a will?

There are two ways to update your will:

• Revoke your old will and draft and execute an entirely new will. The new will should include the date of signature as well as all formal requirements such as witnesses. It is best to include a specific clause revoking all previous wills, although this is not a strict legal requirement.
• Draft and execute a codicil (amendment) to your old will. Even a codicil should be written on an entirely new document that refers to the original version of the will and specifies the amendments with great clarity. The rules for witnesses and notarization are the same as they were for the original will.

Keep in mind that getting divorced will automatically change at least some portions of your will. Above all, be careful — drafting a new will or amending an old will is tricky, and a mistake could result in unintended consequences.

Is an out-of-state will valid in Florida?

That depends on the law of the other state, the details of your will, and the extent to which the will purports to dispose of real estate located outside of Florida. It is best to secure the advice of an attorney, because this issue can get complex.

Can I draft a will or a trust document myself?

You can, but it wouldn’t be a good idea unless you are professionally trained in this area and have several years of drafting experience as well. A single misplaced word or, in some cases, even a single misplaced comma, could result in negative consequences that might not even come to light until after you die. Even a lawyer qualified in another state will defer a job like this to a Florida attorney.

Get Started Today

Your estate plan is a job that has got to be done right the first time. Don’t choose an attorney fresh out of law school for such a task, because the consequences of a wrong choice could haunt your loved ones long after you die. By contrast, the attorneys at Lorenzo Law have over 100 cases under their belt, and we have been serving clients for a combined total of over 5 years.

If you need the services of an estate-planning lawyer (and you probably do!), you need to contact us immediately. Call (305) 999-5411, fill out our online contact form, email us at jml@joselorenzolaw.com or visit one of our offices in Coral Gables and Ft. Lauderdale. Our law firm provides legal services throughout the state of Florida including Miami Dade County, North Miami Beach, Ft. Lauderdale, Coral Gables and elsewhere in Florida.