Wills, Trusts, and other Estate Planning Documents - Wills and Probate Legal Blogs Posted by William J. Hornbeck II - Lawyers.com

Wills, Trusts, and other Estate Planning Documents

A will is one type of estate planning document.  The purpose of a will is to provide a simple and inexpensive means to govern
distribution of all assets in decedent’s name alone to the desired
Beneficiaries. A will also appoints a Personal Representative (which is the
term used in Florida comparable to the term "Executor" used in northern states)
to administer the estate.

A will must be properly executed which means that it will be signed by
testator and two witnesses at the end of the will. It is good but not essential
to have a self-proof of will which includes a notary statement and which allows
the will to be admitted to probate without a witness appearing in Court. The
cost of a simple will is around $300, so it is wise to retain me to make sure it
is done right. I usually prepare a Designation of Health Care Surrogate and
Living Will for no additional charge, and I may also discuss a Durable Power of
Attorney.

The danger of trying to avoid provide by titling your assets in joint
accounts is that a will does not govern those assets. The surviving joint tenant
is generally legally entitled to keep all the assets remaining in the account at
the time of death, no matter what the Will states nor how many other children or
desired beneficiaries are existing. Moreover, a joint account can be subject to
judgment collection against either joint tenant.

A trust is another type of estate planning document.  The main purpose of a trust is to avoid probate and reduce attorney fees and
costs, to provide for funding during incapacity, and to keep estate plan and
assets secret. A trust is a much longer document, and unlike a will, only
covers those assets that are put into the trust by changing the title to the
asset. Thus, there is a need to re-title each asset such as "John Smith, as
Trustee of the John Smith Living Revocable Trust dated January 1, 2012". In
addition to the trust, a "pour-over" will is usally prepared in addition to
cover those assets which may have not been titled in the trust for any
reason. The cost of a simple trust (includiong "pour-over will" is around
$1,000.

Although there are requirements for trust administration, the Court does not
supervise the administration of a trust estate as closely as a probate estate to
make sure things are done properly, so it is very important that the Trustee be
very trustworthy. With a will, the Court requires certain things to be done in
administration and has procedures in place to particularly protect beneficiaries
and creditors. With a trust, if anyone objects to what a Trustee is doing, they
normally have to file suit. In summary, a trust works well where there are
fewer beneficiaries, more trust present between the beneficiaries, and a person
appointed to be Trustee who is very wise, skillful, and trusted by all.

There are different types of provisions in wills and trusts for intended
beneficiaries. For example, the testator can specifically devise a certain sum
or an object to a beneficiary. However, the simpler and preferred type of
distribution is to divide the rest, residue and remainder devises into shares.
For example of one devise, I devise said rest, residue and remainder of my
estate in equal share to each of my following children who shall survive me (and
then each child’s name is listed). If you want to provide that your
grandchildren receive a deceased child’s share, that can be done as well.

In conclusion, although this is a brief discussion of some of the issues,
this basic information is not intended to replace an office conference to
specifically discuss your specific needs and desires. Please give
me, Attorney Bill Hornbeck, a call at (727) 345-3788 or send me an email at hornbeckii@aol.com

Thank you.

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William J. Hornbeck II

Licensed since 1980

Member at firm Hornbeck Law

RECENT POSTS

  • Estate Administration
    Posted on October 18, 2012

    Estate Administration begins with three questions: 1.  Did the decedent have a Last Will and Testament?  If there is a will, there will be testate administration in which the Last Will and Testament will govern and determine who is appointed Personal Representative and how the assets are distributed.  If there is not a will, intestate ... Read more

William J. Hornbeck II

Licensed since 1980

Member at firm Hornbeck Law

RECENT POSTS

  • Estate Administration
    Posted on October 18, 2012

    Estate Administration begins with three questions: 1.  Did the decedent have a Last Will and Testament?  If there is a will, there will be testate administration in which the Last Will and Testament will govern and determine who is appointed Personal Representative and how the assets are distributed.  If there is not a will, intestate ... Read more