Florida Estate Planning

Every estate planning attorney needs a base of ready answers, clauses, and documents. The larger your collection, the more time you can devote to assessing the big-picture needs of your estate planning clients and applying your judgment and experience.

Jamie Pressly and Randy Randolph’s affordably-priced new Florida Estate Planning will add many reliable answers and forms to your collection. You receive 89 forms, dozens of clauses, numerous practice tips and more, all supported with 450 references to recent cases. For example:

41 wills and trusts, including…

Will for Unmarried Testator with Pot Trust
Will for Unmarried Testator with Generation-Skipping Trusts
Husband’s and Wife’s Wills with Minors’ Trusts
Husband’s and Wife’s Wills (Second Marriage) with Immediate Gifts to Children
Husband’s and Wife’s Wills with General Power of Appointment and Special Power of Appointment
Husband’s and Wife’s Wills with Outright Gift to Spouse and No Special Power of Appointment
Husband’s and Wife’s Wills with QTIP Provisions and No Special Power of Appointment
Husband’s and Wife’s Wills with a Disclaimer Plan
Revocable Inter Vivos Trust for Single Person with Descendants
Tax-Planned Revocable Inter Vivos Trust for Married Couples
2503(c) Trust for Two Settlors
Insurance Trust with One Settlor and Children as Beneficiaries

Loaded with practice tips

How the homestead law applies to common estate planning scenarios. §2:10
If a client wants the durable power of attorney to be used to make gifts, the authority should be specifically delineated. Language is provided. §3:25

Minor children

Clients should designate a guardian and successor guardian in both a preneed nomination and in their wills. This ensures recognition by other states in the event of a move. §4:52
Transferors concerned about estate or GST taxes should avoid serving as custodian. The assets can be included in the estate of the transferor custodian if the transferor dies before the minor reaches age 21. §4:92
A will or trust containing a Florida Uniform Transfers to Minors Act authorization clause allows the custodianship to last until the minor reaches 21. Otherwise it ends at age 18. §4:102

All wills

The attorney and client should take steps to prevent a claim of undue influence. For instance, the will beneficiaries should have as little involvement as possible with the estate plan and its development, and should not be present when the attorney and client meet. §5:21

Because the presumption of revocation can be rebutted, destroying a will is not the most effective way to revoke it. Testators who wish to revoke their wills or codicils should do so in a new will or codicil. §5:35

The client should keep the drafting attorney apprised of where the client will be keeping their original will and the drafting attorney should make a notation in the file regarding the location of the will. §5:36
Divorced clients should prepare new wills and beneficiary forms. They should not rely on Fla Stat §732.507(2). They should also update their IRA, life insurance and other death beneficiary forms. §5:55
Explaining in a will why no provision is being made for child or other expected beneficiary can be dangerous and is, therefore, not recommended. An explanation that is not absolutely true can give rise to claim that the testator was delusional or had an impairment of memory. §5:134
If substantially all property goes to the surviving spouse, keep the survival period short.
A gift will not qualify for the marital deduction unless the survival period is less than six months. Of similar importance, a surviving spouse who is the primary beneficiary and personal representative is often in a position to complete the probate process very quickly, sometimes in as little as one month. However, distributions to the surviving spouse should not occur until the survival period has passed. Thus, a long survival requirement can become an unnecessarily limiting factor. §7:07

Tax-planned wills

If the will contains a true worth funding clause then the pecuniary trust should be funded as soon as possible after death. Early funding of the pecuniary trust minimizes the risk of triggering a capital gain on the funding of the trust. Also, if the pecuniary trust is the marital trust an early funding decreases the likelihood of a post-death drop in value causing the bypass trust (Family Trust) to be funded with a smaller amount. §8:41
If the surviving spouse is given a lifetime power to withdraw trust principal, consider limiting the power to an ascertainable standard like health, education, maintenance, and support. This limitation gives the personal representative the flexibility to convert part or all of the trust into a bypass trust that will not be taxed in the surviving spouse’s estate, simply by not making the QTIP election. §8:81
Consider subjecting all distribution powers to an ascertainable standard, as a routine practice. Even if the testator is not naming any beneficiaries as successor trustees, it cannot be guaranteed that no beneficiary will ever serve in such a capacity. After the testator dies, circumstances could change such that it becomes highly desirable for all concerned to have a beneficiary serve as trustee, and both the will or a local judge may authorize a deviation from the succession directions in the will. Unless the testator has a reason to need wholly discretionary powers (e.g., creditor protection or divorce planning), the potential tax problems suggest that such a power is best avoided. §8:171
Before implementing a disclaimer-based estate plan for an IRA or other tax-deferred asset, the client should check with the IRA custodian or a plan administrator to confirm that they will effectuate the disclaimer of the IRA or other retirement plan asset. If the IRA custodian or plan administrator has an issue with the disclaimer-based estate plan, it is better to deal with this now, as opposed to finding out about it subsequent to the testator’s death. §8:271
When clients choose an estate plan that depends upon the surviving spouse’s remembering to investigate the need for a qualified disclaimer, the attorney may want to include a large print notice on a separate sheet of paper. This may be particularly important if the disclaimer is anticipated with respect to tax-deferred assets only, and the will itself contains the straight tax plan. §8:243

Codicils

When preparing a codicil, review the will to make sure that the republication by codicil doctrine [Fla Stat §732.5105] will not affect the will in an unintended manner. The law presumes that the testator has reviewed the will in detail and expressly wishes to retain those provisions which are not revoked by the codicil. Any laws that have changed in the intervening time must be considered if they will affect the result of the will. §9:50
Encourage clients to have their wills reviewed upon their having a child or becoming married. This review will likely result in the will being updated to reflect the birth of the child or marriage and will avoid pretermitted spouse and pretermitted child issues. §9:51

Generation-Skipping Planning

Keep survival requirements short. Survivorship requirements should be 90 days or shorter. Anything longer creates the risk that an unplanned generation-skipping transfer will be made if a beneficiary dies before the end of the survival period. §10:13
A reverse QTIP election should be made in instances where the GST exemption is allocated to the QTIP trust, otherwise the exemption is wasted at the surviving spouse’s death, when the surviving spouse becomes the transferor. §10:62

Trusts

Upon death, a will becomes available for public inspection as part of a probate court proceeding, whereas a revocable trust does not become part of the probate court file and is therefore not subject to public inspection. §11:04
If a client intends on having a corporate trustee act as trustee, then the attorney should discuss with the client whether or not the client would like the corporate trustee to have the authority to invest in instruments owned and controlled by the corporate trustee or its affiliate and should also discuss with the corporate trustee whether it will receive additional compensation as a result of investing in instruments which are owned and controlled by the corporate trustee or its affiliate. §11:113
The trust instrument should not rely on the antilapse statute for determining whether a devise lapses. Instead, the instrument should clearly state the disposition of the devise if the named beneficiary predeceases the settlor or other applicable event. §11:255
When a new client insists that he needs a living trust, explore his reasons for wanting a trust. A client who has been sold on avoiding probate by a TV show or seminar speaker may change his mind when he learns how much effort is required to avoid probate compared with the anticipated costs of a Florida probate. Clients are often surprised to learn that even with a revocable trust, an estate tax return must be filed, creditors must be paid, bypass trusts must be funded, and if the estate owes taxes the beneficiaries may not get all of their money until the IRS has issued a closing letter. §12:13

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Asset Protection Strategies and Forms