White, Griffis & Littell, PLLC
Estate planning is a general term describing the process of ensuring that your property gets to the people you want to have it as efficiently as possible and with the least tax cost.
Property ownership takes different forms. It can be owned individually, jointly with right of survivorship, or as tenants in common (a form of joint ownership that has no survivorship rights). Financial accounts can be held in individual names, jointly titled, ITF (“in trust for”) or POD (“pay on death”) to a named beneficiary. Most people have property in several of these forms simultaneously. Understanding how the different forms of ownership work is critical in planning the steps needed to achieve the results you wish.
An additional critical component of estate planning is preparation for the possibility that you may not be able to make your own health care decisions and ensuring efficient access to the legal documents enabling others to carry out your wishes. These documents typically include a revocable trust, durable power of attorney, health care surrogate designation, and living will.
Estate planning often involves the use of trusts to achieve specific tax results (see Estate & Gift Tax Planning below). Other important personal issues are also best addressed with various types of trusts. These include providing for beneficiaries who have special needs, are minors, are financially irresponsible, or are vulnerable in other ways. Every situation is different. Our lawyers are good listeners and work with our clients to create individual solutions appropriate to their needs.
A last will and testament is the traditional means of transferring property ownership at death. Wills govern only the disposition individually owned property. A person who makes a will (called the “testator” or “testatrix”) can determine who will manage the estate (a “personal representative”) and specify who is to receive distribution of their property, and on what terms. If there is no will, the Florida Probate Code governs who receives shares of a decedent’s property and who has priority to be appointed as personal representative. The lack of a will often results in problematical situations, particularly in blended families. Wills must be admitted to probate, and their contents become a matter of public records accessible to anyone who visits the Courthouse or has an internet connection. Some (but not all) steps in probate are also publicly accessible.
Revocable trusts have become a widely used means of transferring property ownership without an estate administration under the Probate Code. A revocable trust (often referred to as “living trust”) can be amended or revoked by the person who created it (the “grantor” or “settlor”) as long as he or she is competent. When the grantor dies the trust becomes irrevocable and a period of initial administration begins. The initial administration is functionally comparable to an administration under the Probate Code. Once funeral expenses, last illness expenses, claims and taxes are paid, property is distributed to the beneficiaries or held in continuing trusts as directed by grantor. The provisions of a revocable trust are not public record and remain completely private. A will used in conjunction with a revocable trust is known as a “pour over” will, because its function is to transfer any property in the grantor’s individual name to the trust for further disposition.
A secondary and often under-emphasized use of revocable trusts is to avoid a guardianship if the grantor becomes incapacitated. A guardianship under Chapter 744 of the Florida Statutes is a highly regulated, cumbersome process, and expensive. Florida has a dual guardianship system with guardians for property and guardians for the person, who may not be the same person. Many actions taken by a guardian require court approval, making the process to be slow and costly. Avoiding a guardianship through the use of a revocable trust can save substantial sums of money and allow more flexible and timely management of an incapacitated individual’s care.
Powers of Attorney
Powers of attorney confer legal authority from a “principal” (the person who executes the document) to an “agent” (often referred to as “attorney-in-fact”) named in the document, authorizing the agent to act on behalf of the principal in a myriad of everyday transactions. A power of attorney used for estate planning purposes is usually a “durable” power of attorney, meaning that it remains effective if the principal becomes incapacitated. Although durable powers of attorney in Florida are effective immediately upon execution, their intended use is to allow an agent to act on the principal’s behalf in the event of incapacity, thereby hopefully avoiding a guardianship. Since durable powers of attorney are used to manage financial and property matters when incapacity occurs, they normally should be very comprehensive. Florida law provides that unless the document specifies otherwise, a copy of a power of attorney can be used for all purposes except conveying real property. The best use of a durable power of attorney is in conjunction with, not as a substitute for, a revocable trust.
Advance Directives for Health Care
Estate & Gift Tax Planning
Successful estate planning occasionally calls for advanced strategies designed to minimize the impact of the federal estate and gift taxes. Although most estates are not subject to estate tax when a person dies because of a substantial exemption, under current law the exemption will be reduced by at least half on January 1, 2026; and Congress has actively considered reducing it even sooner. If your estate is potentially subject to estate tax, you need to talk to us. Our lawyers stay abreast of current developments and are experienced in the use of advanced planning techniques, including irrevocable life insurance trusts, grantor retained annuity trusts, qualified personal residence trusts, grantor trusts, spousal lifetime access trusts, and a host of other tax-saving tools. We work closely with investment professionals to design efficient strategies consistent with our clients’ personal goals.
Estate & Trust Administration
We frequently receive calls from clients saying they want to “avoid probate,” but without any knowledge of what probate actually is. Probate is merely a court-supervised process of transferring the assets (the “estate”) of a deceased person to his or her beneficiaries, with a goal towards making sure anyone with an interest in the estate gets treated fairly. The Florida Probate Code provides, generally, for two types of probate, Summary Administration and Formal Administration. Although neither is particularly cumbersome if effective planning has taken place during a person’s life, in functional families it may be desirable to avoid them. One common way to do that is with revocable trusts, discussed elsewhere on this website. Many of the steps in Trust Administration follow the same procedures as Probate, but with no (or minimal) court supervision. Talk to us to explore which will be more beneficial for your family. Our lawyers have many years of experience guiding personal representatives and trustees through the probate process and trust administration.
Business Succession Planning
We assist clients in planning and executing exit strategies from successful businesses they have built up over many years. Clients who are fortunate enough to have built a successful business are often wary of turning over control to a younger generation or selling what they have worked so hard to accomplish. Business succession planning may involve the negotiation and preparation of complex contract documents for the sale of a business or the creation of one or more entities so that ownership can be passed on to another generation while preserving the control necessary to allow the business to succeed and be profitable.
Estate & Trust Litigation
Disputes regarding the distribution of property almost always involve family members. Strong emotions are at work along with disputed facts and complex legal doctrines. We have represented clients in court cases involving:
- Will and trust contests
- Removal and surcharge of personal representatives and trustees
- Undue influence and lack of capacity
- Breach of fiduciary duty
- Joint property and financial account disputes
- Will and trust construction, modification, and reformation
- Creditor claims
- Real property partition
- Homestead disputes
- Estate planning malpractice.
We counsel clients and help them weigh the financial cost and long-term personal consequences of intra-family litigation.
We treat everyone — clients and adverse parties alike – with civility, respect and honesty.
We understand and value the high degree of trust our clients place in us.
We bring years of practical experience in applying the law to serve our clients.