Maybe you’ve recently experienced the death of someone you know or perhaps even of a loved one. Have you watched a family feud develop over an estate? How long does probate take in Florida? This can vary depending on the county.
The death of a loved one is difficult enough without having a family feud break out over who gets mom’s china or dad’s coin collection after they die. How can you avoid probate in Florida? Estate planning makes it easy to avoid family squabbles before they happen.
While the probate process in Florida may seem daunting, if you follow these steps today you will be well on the road to ensuring that everyone – yourself and your loved ones – are taken care of in the future.
#1 Get your house in order
The first step to stopping a family feud is to remove the most likely reasons the fight will erupt in the first place. In short, put together an estate plan. The first step in an estate plan is to get your house in order.
Follow these three easy steps to make this task simple:
- Open a computer spreadsheet so that you can easily edit, add or remove items as you go and update items over time.
- Now, start by gathering all of your important documents – life insurance policies, titles, deeds to all real property, tax returns, documents relating to any benefits such as Social Security, Medicare or Medicaid, stock certificates, cemetery plot information, marriage or divorce paperwork, etc.
- Put everything in a file folder. On the spreadsheet, list out what items are in the folder and where the folder is located.
Then, sit down in front of your computer and open a new worksheet in the same spreadsheet. Title it “Assets”.
Now, type up a list of everything that you own. Include all of your assets, such as:
- Real estate, cars, furniture or jewelry
- Collections (baseball cards, silverware, art, collectible figurines)
- Memorabilia and antiques
Finally, open another worksheet in the spreadsheet and title it “Debts”. Type out a list of what you owe. Include your mortgage, car payments, bank loans, personal loans, credit card debt, business loans, etc. Everything, no matter how small or insignificant should be on this list. The $150 you owe your niece may just be the trigger for a protracted family feud later on.
#2 Keep current and keep it safe
A common reason families fight over an estate is that they have multiple updated copies of important documents. As you can easily imagine, multiple documents often lead to fighting and discrepancies as to your wishes and often ties your estate up in probate court until everything is sorted out. That’s why it is a good idea to keep up-to-date records on your assets and liabilities and to make sure either your spouse or a trusted family member knows where your important documents are kept and how to gain access to them should you become incapacitated or die.
Some places you may consider storing your documents include:
- Bank safety deposit box
- Waterproof, fireproof home safe
- Elder Law Attorney’s office or with your CPA
- With a trusted family member or loved one
Once you’ve secured your documents, make a note on your calendar to review these documents annually and get rid of old or outdated documents. Ensure everything you put away is dated and previous versions are revoked and destroyed.
#3 Elder Law 101: Taking healthcare decisions into your own hands before it’s too late
This is one of the most emotional reasons families fight when a loved one time has come to pass. The intense emotion of end of life decisions often tears family members apart, even siblings who have always been close. Avoid bringing your family to this situation and put a living will or advanced directive in your estate planning documents. You’ve probably heard those terms, but aren’t sure what they mean – it is a written set of instructions for how you want to be treated should you become very ill and unable to make your own healthcare decisions.
It can be daunting to put these together, so here are three easy steps to follow to have plans in place to avoid a family feud over health care decisions:
First, carefully consider all of the possible scenarios that might occur and try to be as clear as possible about how you want your situation to be handled. While you can’t plan for every single scenario, you might include whether you want to be resuscitated after your heart stops beating, under what circumstances should you be resuscitated, whether you want to be placed on life support, what kind of palliative (comfort) care you would like. In some instances, people want everything that can be done to be done to keep them alive, while others don’t want to be kept alive artificially. This is something you can specify in your living will.
Second, decide if you want to become an organ or tissue donor. Specify what organs you want to donate. You can also register to become an organ donor with your state donor registry, often easy to do when you renew your driver’s license.
Finally, talk to your family about your wishes so they can alert those medical professionals who are handling your care in order to make the proper arrangements.
Having healthcare directives in place ahead of time will help to ensure that you receive only the treatments or medical procedures that you want and avoid an emotional family fight.
#4 Giving up power to eliminate the guilt
Now that you have thought about your living will and health care directive, it’s time to give up power to someone in the family. But, who should be your healthcare proxy? This person will be able to legally make healthcare-related decisions on your behalf if you can’t speak for yourself. This person will make sure that health care providers follow your wishes.
When selecting a proxy to consider these traits:
- Is this person steadfast in the face of a crisis?
- Can he or she make decisions under pressure?
- Can he or she respect my wishes even if they do not agree with them?
- Is this personal nearby or able to come quickly should an emergency arise?
- Are there outside factors which would prevent this person from being able to make decisions for me in a crisis? (ie. Small children and no other caretaker, significant overseas travel for work, interpersonal difficulties with other family members)
Once you’ve determined who your healthcare proxy will be, talk to him or her and seek their permission to delegate this responsibility. Don’t be offended if they say no, being a proxy is a lot of responsibility and some people may feel uncomfortable. Finally, once he or she has agreed, make sure this person has a copy of your living will. Provide his or her contact information to your estate planning attorney.
You will also need to name an executor, that is someone who will be in charge of making sure your wishes are carried out. A court will give this person the power to handle your affairs once you have died. Make sure you discuss this with the person you choose in order to ensure that they are comfortable being given this responsibility.
Select someone you trust and who will be able to handle the job once you are gone. If you fail to choose an executor, the court will choose someone to fill this role. In most cases, the surviving spouse or domestic partner will get the job with adult children and family members considered if no spouse or domestic partner exists.
#5 Time for a family meeting!
Even before you sit down with an elder law attorney, speak with family members about how you want your situation to be handled. Make sure everyone who might be affected by your decision is aware of your wishes so no battle takes place when the time comes to follow your directives. While such end-of-life discussions are never easy to have, without a living will your healthcare could be left in the hands of healthcare providers.
That could mean that your life might be prolonged by artificial means, even if it’s not something that you want. It also could result in arguments among family members about whether you should be kept alive because that’s what they think you would, or would not want. Often end of life decisions fuel the fire of family feuds that push into seeking probate and estate administration lawyers, which is a process. Bad feelings snowball and before you know it your estate is stuck in probate.
Once you have made your wishes clear and they are written down, distribute copies. You should consider distributing copies to:
- Your family physician
- Your healthcare proxy
- Your elder law attorney
- Trusted family members
Some people keep a copy with them at all times. This generally isn’t necessary; the key is to make sure it is easily accessible. You may consider keeping a card in your wallet or purse indicating that you have a living will and who should be contacted in case of an emergency.
#6 What “will” they get?
Safeguarding your future extends beyond your living will. Just as important as a living will is a will that will determine where all of your earthly possessions will go once you die. Whether you choose to draft a will using an elder care law attorney, or even if you create one yourself using an online template, you will need to have access to your most important documents in order to properly assess what might be done to protect your current and future assets in the event of an illness or your death.
Make sure if you use an online template that your will is considered to be a legal document in your state and is dated appropriately. Destroy or revoke any previous copies when you write a new will to avoid having your estate go into probate. An elder law attorney may be the best option to avoid probate law problems down the line.
#7 Keep beneficiaries in the loop
While relatives are more likely to fight over the big stuff, like the house, vacation property, the car, a boat or your savings, sometimes it’s the smallest items, such as grandma’s charm bracelet, that end up being the subject of the biggest feuds. The sentimental becomes emotional. Again, this might be a good time to discuss your will with family members and let them know of your plans. Perhaps you thought your child really wanted a particular family heirloom, when in reality they would prefer to have something that you never even considered, like your golf clubs. Sentimental items often become the biggest bone of contention in battles over a will.
#8 Keep the squabbling to a minimum
Unfortunately, many families end up in huge fights after the death of a loved one because they were not told up front what to expect. Don’t leave anything up to chance. By explaining to your heirs what they will be getting and why you can eliminate a lot of hard feelings and anger.
If you plan to divide up property, make sure you explain exactly how it will be done and who gets what percentage of the property. If for example, your house will be willed to more than one child, there should be a discussion as to whether they will keep it or sell it. And, if they do decide to sell, you might want to determine who will be in charge of that decision.
#9 Keep the kids and pets in mind
If children are involved, be sure to include who will be their guardian should something happen to you before they reach the age of maturity. While family members are often the logical choice, sometimes they are not the most feasible. Perhaps your parents are too old to be able to raise young children, or your siblings have too many other responsibilities of their own. In some instances, long-time friends are the better choice. If your children are old enough to have this discussion, ask them who they might prefer to live with should something happen to you?
Just as important is who will manage your child’s inheritance until they are old enough to do so on their own. Many estate planning or elder law attorneys recommend considering a provision in the will that states your assets are to be distributed over time and not in one lump sum. This will help to ensure that when your child does become old enough to receive their inheritance, they don’t blow it all at one time on a trip to Hawaii or a new sports car.
You can put a provision in your will stating that they will get a certain percentage up front and then incremental amounts when they reach certain milestones, such as a certain age, or when they graduate college. Pets also should be considered when drafting a will, find someone willing to care for them should something happen to you. If you don’t name a guardian, then the courts must appoint one. It is his or her job to act in the child’s best interest.
#10 The best tip to avoid probate law fighting: Keep your will current
As with anything in life, things change. People marry, divorce, have children, grandchildren, purchase or sell the property, inherit possessions from others, etc. That’s why it’s always important to review your will regularly, particularly after a life-changing event.
Watch this! Estate planning attorney, Marshall McDonald explains what his three goals are for senior citizens when they come to him. Number one avoid probate!
While this may sound like a difficult process, updating your will not only ensure that your loved ones are protected, but also that those who you may no longer want to be included in your will, such as an ex-spouse, don’t get anything you don’t want them to get. Do the same with regard to your beneficiary designations on items such as your life insurance policy, your retirement accounts, etc.
#11 Here comes the judge
What many people may not realize is that even if you have a will, it will most likely to go through probate. The granting of probate is the first step in the legal process of administering the estate of a deceased person, resolving all claims and distributing a deceased person’s property under a will. Because the laws of each state vary, you may want to have a discussion with your elder care law attorney about how this works and ways you can avoid a lengthy probate process.
Why does this matter?
Generally speaking, your will must be filed with the probate court, at which time the executor will begin to manage your assets. If you have not named an executor, then the court can do this. The process can be lengthy and take a few months to a year – sometimes longer if someone steps forward to contest your will.
In addition, if you owe money, then those debts will have to be paid off from the estate. The process can be time-consuming and your finances can become a matter of public record. Your probate attorney can discuss options with you.
#12 So, you want to keep things out of court
You probably already know that having your estate tied up in probate court can be time-consuming and in some cases costly. It is also more likely to result in family fighting and feuds the long it takes to distribute your estate. However, there are ways to avoid probate. For example, you can transfer property before you die.
Perhaps you know you want to give a particular piece of jewelry to a child or grandchild, or maybe you feel comfortable enough to give gifts of cash before you die. Just make sure whatever you give today, you will not need tomorrow. Also, consider the tax implications of those gifts. You may want to discuss those with a tax or finance professional.
Owning property jointly with a survivorship right is another way to avoid probate. If one of the owners dies, the title to the property automatically passes to the remaining owner. There are different ways to structure this, so having a discussion with your elder care lawyer can help you to determine which one is right for you.
Creating a living trust also allows you to leave your property and assets to your heirs and to avoid probate. This document allows you to transfer property and assets from you to the trust and you become the trustee and control everything until your death. After your death, the person you have appointed as your trustee is responsible for making sure that the property is transferred to those who you have designated as beneficiaries.
That’s not all.
The trustee also would be responsible for managing the trust should you become mentally incapacitated. There are many different kinds of trusts. The two most common are a revocable trust, which, as the name indicates, can be revoked at any time, and an irrevocable trust, which means it can’t be revoked. Choosing and creating a trust can be a complex process. And elder care law attorney can help you to decide what’s right for you.
You can also keep some of your assets out of probate by naming a beneficiary. Life insurance policies, 401(k) plans, pensions and retirement accounts can go directly to a beneficiary. The same goes for savings accounts, if someone else’s name is on it, they will be able to access your money at any time. If you don’t feel comfortable doing this, you can set up what’s called a “Totten Trust” also known as a pay-on-death account. This allows you to name a beneficiary who can gain access to your money upon your death. A Totten Trust beneficiary can be changed at any time so long as you are competent to make financial decisions and, if you want to, you can even close the account.
State probate laws differ so you may want to discuss your options with a qualified probate attorney. It’s important to understand that a trust doesn’t eliminate the need for a will altogether, particularly if children are involved. You will have to make sure that you have a document drafted to ensure that their guardianship is taken care of in the event you die.
#13 Plan your funeral
No one likes to think about what will happen after they die, but this is not something you should be left up to family members or even strangers. Families have been known to fight over simple things like flowers and music. Even décor. Create a document outlining how you want to be buried or cremated. Do you want specific music played or photos displayed? Do you want a religious ceremony or something that’s non-denominational? Some people might even consider writing their own obituary so that it’s not left up to a family member. Or, if you don’t feel comfortable doing it yourself, have a family member write one ahead of time and keep it in a safe place for when the time comes.
There’s nothing more stressful than to have to plan a loved one’s funeral after they die. Make sure your family knows your wishes and that there are no arguments about where you will be buried or if your ashes are to be tossed into the sea or spread under your favorite tree. This is your decision and family members should not be left to bicker over where your final resting place will be.
Family squabbles are a common part of life for most families. Usually, we get over them quickly, however, when things get emotional it can be difficult for family members to see beyond their own hurt feelings and reconcile. Avoid having a family feud erupt over an emotional loss and follow these steps to avoid a family fight erupting over your estate.
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