Is a Last Will and Testament Enough? Why Florida Estate Planning Often Requires More

For generations, many people have thought of a Last Will and Testament as the centerpiece of an estate plan. You prepare a Will, state who should receive your property when you die, name someone to handle your affairs, and assume that your family will simply follow those instructions.

Unfortunately, it is often not that simple.

A Last Will and Testament can be an important part of an estate plan, but a Will generally does not avoid probate. In fact, a Will is essentially a set of instructions that must be presented to the probate court after death before it can be used to administer and distribute probate assets.

For many individuals and families—particularly in Florida—a Will alone may therefore not be the most effective estate-planning strategy.

A Will Does Not Avoid Probate

One of the most common misconceptions I encounter is the belief that having a Will means your family will not have to go through probate.

Generally, the opposite is true.

A Will tells the probate court how you want your probate estate administered and distributed. After death, the Will is typically filed with the court, a probate proceeding is commenced, and a personal representative is appointed to administer the estate.

The personal representative may then have to identify and collect estate assets, address creditor claims, provide required notices, pay expenses, resolve disputes when they arise, and ultimately distribute the remaining assets to the beneficiaries.

Even when everyone gets along and the Will is perfectly drafted, probate is still a legal proceeding.

Probate Can Mean Time, Expense and Court Involvement

The complexity of probate varies significantly depending upon the state, the assets involved, the creditors, the beneficiaries, and whether disputes arise.

Some estates can be administered relatively efficiently. Others can take many months or considerably longer.

Probate can also involve court filing fees, attorney's fees, personal representative's fees, accounting expenses, appraisal expenses and other administrative costs.

There is also a loss of privacy. Probate proceedings are generally court proceedings, and many documents filed in a probate case become part of the public record.

For families who simply want assets transferred efficiently from one generation to the next, this may be an unnecessary burden that could have been reduced through proper planning during the person's lifetime.

Why a Revocable Living Trust May Be a Better Foundation

One common alternative is a revocable living trust.

During your lifetime, you can create a revocable trust and transfer appropriate assets into it. You generally remain in control of those assets while you are alive and competent. You can typically amend or revoke the trust and can serve as your own trustee.

Upon your death, the successor trustee can administer and distribute properly titled trust assets according to the terms of the trust without those assets having to pass through the traditional probate process solely because of your death.

That distinction can be significant.

Instead of relying exclusively upon a court-supervised probate administration to transfer assets, a properly structured and funded trust can provide a mechanism for managing and distributing those assets outside of probate.

A Trust Is Only Part of the Plan

Creating a revocable trust does not mean that a Will becomes unnecessary.

A comprehensive estate plan may include several documents, depending upon the individual's circumstances, including:

• A Revocable Living Trust

• A Pour-Over Will

• A Durable Power of Attorney

• A Designation of Health Care Surrogate

• A Living Will

• Appropriate beneficiary designations

• Proper titling of real estate, bank accounts and other assets

  
  

The documents must also work together.

For example, signing a beautifully drafted revocable trust but failing to properly title appropriate assets in the trust may defeat an important purpose of creating the trust in the first place.

Estate planning is therefore not simply about signing documents. It is about creating a coordinated plan for how your assets will be owned, managed and ultimately transferred.

Does Everyone Need a Revocable Trust?

No.

There is no single estate plan that is appropriate for everyone. A Will may be perfectly appropriate in certain circumstances, and some assets can pass outside probate through beneficiary designations, joint ownership or other arrangements.

The appropriate strategy depends upon factors such as the nature and value of your assets, your family circumstances, where you own property, your beneficiaries, your privacy concerns and your objectives.

But if your estate plan consists only of a Will because you believe the Will will allow your family to avoid probate, it may be time to take another look.

Estate Planning Should Be About More Than Who Gets What

Good estate planning is not simply deciding who receives your property after you die.

It should also consider:

How will the property get to them?

Who will manage your affairs if you become incapacitated?

Will your family need court involvement?

Can unnecessary expense and delay be reduced?

Are your assets titled consistently with your estate plan?

Are the people you selected actually authorized to act when the time comes?

A Last Will and Testament remains an important estate-planning tool. But for many Florida families, a Will should be viewed as one component of a comprehensive estate plan—not necessarily the entire estate plan.

If you have an existing Will and have not reviewed your estate plan in several years, or if you are unsure whether your assets would require probate, consider having your estate plan reviewed to determine whether it still accomplishes your objectives.

Disclaimer

This article is provided for general informational and educational purposes only and does not constitute legal advice. Reading this article does not create an attorney-client relationship. Estate planning and probate laws vary by jurisdiction and individual circumstances. You should consult with a qualified attorney regarding your particular situation. Anthony M. Barbuto is licensed to practice law in Florida, California, and New Jersey.