The Law Offices of Barbara Buxton, P.A. Serving South Florida 305-932-2293
Broward, Miami-Dade, Palm Beach Cnty.

FAQ: Florida Estate Planning from Barbara Buxton, Esquire: Florida Wills, Trusts and Estates Attorney

Experienced Estate Planning, Wills, Trusts Attorney: Florida Probate Lawyer in Aventura, Pembroke Pines, Plantation, Hollywood, North Miami Beach, Florida

Personal Attention, Integrity, Professionalism ~ 20 Years of Experience

Barbara Buxton, Esquire is an experienced South Florida Probate, Wills, Trusts and Estate Planning Attorney with an advanced Master of Laws in Estate Planning degree (LL.M.) from the University of Miami. Ms. Buxton will guide you through the critical decision making process required to design the perfect estate plan for you. This process involves evaluating your financial assets and goals, planning for healthcare and providing sound legal advice while thoroughly explaining appropriate strategies. The end result: Peace of Mind that comes with having a trust and estate plan that is customized for you and the needs of your loved ones.

Contact The Law Offices of Barbara Buxton, P.A. to schedule an appointment to begin creating a trust and estate plan that is tailored to meet your needs. Please visit our estate planning and trusts page or probate page to learn more about our services.

This material is for informational purposes only. It should not be construed as legal advice. This information is not intended to replace the assistance of an attorney in any particular situation.

What is estate planning?

Estate Planning is a process by which a person designs a strategy and prepares documents to conserve, protect, and distribute estate assets before and after death for the benefit of loved ones and charities, taking into consideration the effect of state and federal tax and administrative laws and regulations. It can also involve planning for the use of your assets for your care if you become unable to manage your affairs during your lifetime.

On the financial side, a good estate plan coordinates what would happen with your home, your investments, your business, your life insurance, your employee benefits (such as a 401K plan), and other property in the event you became disabled or when you die.

On the personal side, a good estate plan includes directions to carry out your wishes regarding health care matters, so that if you ever are unable to give the directions yourself, someone you select would do that for you, and know when you would want them to authorize or refuse heroic measures.

What is an estate?

An estate consists of all the property a person owns or controls, whether in his or her sole name, held in a partnership, in a joint ownership arrangement, or through a trust, and all other monies that would be generated on the person's death, such as through life insurance. It includes:

  • life insurance, pension benefits, annuity contracts, IRAs, all debts and obligations owed to others
  • real property and things attached to it (houses, buildings, barns, etc.)
  • all personal property (including automobiles, bank accounts, stocks and bonds, mutual funds, stock options, cash, furniture, jewelry, art, collectibles, etc.)
  • all businesses and business interests (sole proprietorships, partnerships, corporations, joint ventures, and the goodwill, inventory, tools and equipment, accounts receivable, and other business property, etc.)
  • powers of appointment (the right to direct who gets someone else's property)
  • all claims you have against others.

Do I need an estate plan?

You should have an estate plan if:

  • you care about who inherits your property;
  • you care about your health care treatment;
  • you are the parent of minor or disabled children; and/or
  • you want to avoid the public proceedings of a possible guardianship and probate.

A properly designed estate plan may: (1) provide instructions for your care and that of your loved ones in case of your disability; (2) be effective if you move to or own property in another state; (3) avoid probate; (4) keep your affairs private and confidential; (5) control all your property, including pensions and life insurance; (6) allow you to leave explicit instructions for the care of your loved ones; (7) create protective trusts for your young children, special needs children, adult children, and grandchildren; and (8) provide federal estate tax planning and save professional fees and court costs.

With the help of The Law Offices of Barbara Buxton, P.A., you can create an estate plan that will protect you and your family from guardianships, probate, and that will allow you to do valuable tax planning.

If my estate is small and my assets are worth less than the federal estate tax threshold, then why do I need more than a basic will?

Even though you may not have a multi-million dollar estate, you may want to protect your love ones through an estate plan. Family situations in which there is the potential for discord (such as second marriages when there are children by the first marriage) call for the use of more advanced estate planning techniques including trusts. Those techniques are also useful if you desire to have a dispositive plan that does more than simply divide your assets and leave them outright to each beneficiary.

The Law Offices of Barbara Buxton, P.A. can assist you with creating an estate plan that is tailored for your situation and that will give you peace of mind.

What happens if I die without a will?

If you die without leaving a will, you risk that your property will not be distributed as you desire. Your assets will be distributed according to the rules of your state's "intestacy" statute, not by how close one was to you. Therefore, longtime friends or caretakers will not receive any of your estate.

Even when theheirs at law are the same as you would have selected yourself, there is no advantage dying without a will. For example, you lose the opportunity to designate a personal representative, trustee, guardian for minor children, and to do valuable tax planning.

With a well-drafted will you can avoid legal pitfalls, name a personal representative of your estate, name a guardian for your children, establish trusts, and minimize probate-related costs by providing for independent administration. Dying without a will may cause unexpected costs and delays and undesired results for the decedent's family.

When should I start my estate plan?

The only time that you can prepare and implement an estate plan is while you are alive and have legal capacity to enter into a contract. If you are unable to manage your own affairs or suffer from a disability which affects your legal capacity, your estate plan may be effectively challenged by those who assert that you lacked capacity at the time the documents were created, that you were subjected to fraud, coercion or undue influence during the creation and implementation of your plan.

The best time to start an estate plan is now, while you have the capacity to do so.

Please contact the Law Offices of Barbara Buxton, P.A. when you are ready to create a customized estate plan with ease.

What information do I need to provide a lawyer to create a will or trust?

First, you will need to provide your family details, such as your current marital status, the names and ages of your children and the other beneficiaries s of your estate, if any. These are the persons or organizations who will inherit your estate. If you plan to leave property to your children, you will need to decide at what ages the children will actually receive the property they inherit. You also must decide the shares of your estate that each beneficiary will receive.

If you have minor children then you must choose a guardian. This is the person who will take care of your children in case you and your spouse die before your children become adults. The guardian will raise your children and manage their money.

You also need to provide a list of your assets and their approximate values in order to determine the most effective documents, such as the type of trust or trusts, to use in your estate plan.

What are some of the decisions that I will have to make in order to set up my estate plan?

An estate plan consists of one or more documents that set forth instructions. Some documents are used to control health care decisions, others control your property in the event of your incapacity, and still other documents will control the distribution of your property in the event of your death.

The first thing that must be decided is who you would like to appoint as your attorney-in-fact to make healthcare decisions and as your attorney-in-fact to handle your financial affairs. They may be the same person or persons, or different people on each document. Two people may be appointed to make decisions together on your behalf, or you may choose to have alternates.

Next, it must be decided who you would like to inherit your estate, also called beneficiaries, and in what shares under your Last Will and Testament or Trust. Consideration should also be given as to how the beneficiaries receive their inheritance. Should everyone receive his or her entire bequest in one sum, or should some individuals receive distributions over time? Also, if you have concerns about creditors or saving estate taxes for a beneficiary, it may be beneficial to leave bequests in further trusts for beneficiaries.

As part of your Last Will and Testament you must also appoint a personal representative or co-personal representatives who will administer your estate. This includes hiring an attorney to represent the estate, collecting your assets, paying your debts and taxes, and distributing your assets to the beneficiaries. If you create a trust then you must appoint a trustee or co-trustees who will make discretionary distributions of income and principal to your loved ones.

What are some of the common estate planning documents?

Several of the following documents are typically used as part of the estate planning process:

  • Simple and Complex Will Creation: A will declares who shall inherit an individual's assets (the beneficiaries) and who shall be responsible for distributing them to such beneficiaries (the personal representative). For young parents and couples, a will can also be used to appoint a guardian for their minor children and a trustee to manage the children's money until they are old enough to handle it themselves. A Will only becomes effective upon your death, and after it is admitted to probate.

  • Pour-Over Will:A Will used in conjunction with a Revocable Living Trust to dispose of any property titled in the decedent's name alone at the time of death which was not transferred to the Trust. The Pour-Over Will also revokes all prior wills, but unlike traditional wills it does not contain detailed dispositive provisions; rather it directs distribution of all individually owned property to the Trustee of his or her Trust. The Trust instrument contains detailed instructions relating to the distribution of the property. Like all Wills, a Pour-Over Will must be admitted to probate to be effective.

  • Establishment of Trusts, such as:

A-B Trusts:The two "sub-trusts" created when a person dies, the "A" Trust, often referred to as the "Marital Trust", will be maintained for the benefit of the surviving spouse. The "B" Trust will contain assets of a value equal to the deceased spouse's remaining estate tax exclusion amount. The B-Trust, also referred to as the "By-Pass Trust", "Credit Shelter Trust" or "Family Trust", will also be held for the benefit of the surviving spouse during his or her lifetime, but upon the death of the surviving spouse, the trust assets will pass to the children (or other beneficiaries) without any additional estate tax, irrespective of the value of the B-Trust at that point.

Revocable Living Trust:A trust established by an individual or a married couple that becomes effective immediately upon establishment while the Trustor (also referred to as Settlor or Grantor) is still alive (thus "Living"), remains revocable and amendable during the lifetime of the Trustor (thus "Revocable"), and is used to avoid probate; facilitate some tax planning; provide for management during periods of incapacity without need for a guardianship or conservatorship; address family circumstances; and provide for ultimate distribution of the estate.

Irrevocable Trust:A trust that cannot be revoked, modified or amended once it has been established. Irrevocable trusts are often used in tax planning to get property "out" of an individual's estate so that it will not be subject to estate tax upon his or her death.

Insurance Trust:An irrevocable trust established to own life insurance on a person, so designed to exclude the proceeds of the policy - the death benefit - from the insured person's taxable estate at death.

Special Needs Trust/Supplemental Needs Trust:A trust established for a disabled person to provide supplemental support without disqualifying the beneficiary from eligibility for governmental assistance programs. They may be created with the proceeds from a judgment or settlement or by a loved one with concerns for a disabled beneficiary.

Charitable Trust: A trust created for the purpose of performing charity or providing social benefits, and achieve income and estate tax savings for the person who created the trust. Unlike most trusts, a charitable trust does not require definite beneficiaries and may exist in perpetuity.

Crummey Trust:An irrevocable trust established to qualify contributions for the annual federal gift tax exclusion (currently $11,000) for gifts of a present interest. So-called because the trust contains "Crummey Powers," enabling a beneficiary to withdraw assets contributed to the trust for a limited period of time.

Gift Trust:An Irrevocable Trust established to act as the repository of gifts to its beneficiaries, drafted such that the gifts to the trust will be excluded from the donor's taxable estate at death.

Spendthrift Trust: A trust that is created for a beneficiary who is paid income therefrom and that cannot be reached by creditors to satisfy the beneficiary's debts.

  • Durable Powers of Attorney: A legal instrument whereby one appoints and empowers another person as agent to deal with one's property and personal and legal affairs. It remains effective even after the maker becomes incapacitated. Florida law authorizes both immediate and springing durable powers of attorney.

  • Health Care Surrogates and Living Wills: A document appointing a health care surrogate and giving instructions to health care providers about the person's wishes during the final stages of an illness, generally instructing providers not to interfere with the process of dying by using machines or other heroic measures to delay the natural course of a terminal illness.

  • Deeds

  • Beneficiary Designations under retirement accounts and insurance policies

  • Structure of Family Limited Partnerships: To own and manage your property, in a similar manner to a Trust, but allowing additional tax planning techniques to be employed. Family Limited Partnerships are generally used for those who have large estates and who face potential heavy federal and state taxes, death, and inheritance taxes.

  • Charitable Planning and private foundations

  • Estate and Gift Tax Review: Please refer to the Estate & Gift Tax Planning.

  • Business Succession and Liquidity Planning

Please contact the Law Offices of Barbara Buxton, P.A. when you are ready to create an estate plan that is customized for you and the needs of your loved ones.

When should I change my estate plan?

An estate plan should be updated when there are changes in the testator's beneficiaries, property, or family status (i.e. marriage, divorce, birth or adoption of a child, etc.). This can be accomplished by executing a proper amendment (a codicil) to modify the existing will or by canceling (revoking) the existing will and then executing a new one. It is not advisable to update a will by writing or making changes on it because such revisions may be totally ineffective.

Be aware that a will can also be canceled to some extent if the testator is divorced after making the will. In such a case, gifts to the ex-spouse in the will, as well as appointments of the ex-spouse as executor or trustee, are void and will not be recognized. However, an ex-spouse who was designated during marriage as a beneficiary under the decedent's life insurance policies is entitled to the life insurance proceeds upon the decedent's death. A temporary order issued by a divorce court prohibiting a party to a pending divorce case from changing his or her will until the divorce is final is unenforceable.

The subsequent marriage of a single testator will not cancel his or her will. If a person who signs a will before marriage wishes to give all or any portion of his or her property to the new spouse, he or she should sign a new will. Otherwise, the property will pass according to the state law and provisions contained in the will that was signed before marriage, and the new spouse may receive less than the deceased spouse intended.

The Law Offices of Barbara Buxton, P.A. can assist you with reviewing, updating, and creating your will and other estate planning documents to ensure that your estate is distributed according to your wishes.

How can you change your will?

The following are valid ways you can change your will:

  • Execute a new will. The law presumes that by writing a new will, the Testator wants to revoke the previous will. However, it is advisable to include a phrase similar to "I revoke all previous wills" to ensure that the state recognizes that the new will supersedes any previous wills.
  • Execute an amendment, called a codicil. A codicil should make specific reference to the existing and still effective will, and makes additions, deletions, or amendments. To properly execute a codicil, it must be signed in the presence of witnesses and notarized.

If you need to make changes to your will, please consult an estate planning attorney. Crossing out words or sections and writing in the margin of the original will invites potential ambiguity, confusion, and potential will contests.

What if I have a will that was made in another state?

Wills are governed by state law. You should have your out-of-state will reviewed by a Florida estate planning attorney to be sure it will operate effectively in Florida.

What can be done to minimize estate and gift taxes?

Numerous advanced estate planning strategies are employed to minimize estate and gift taxes. There are many factors that must be considered when tailoring a plan that will work best in each client's situation. However, techniques that work exceptionally well for one client may be totally inappropriate for another client. The only constant is that clients with estate and gift tax concerns who are willing to invest in estate planning can expect to save much more in estate and gift taxes than they will spend in developing and implementing an appropriate plan.

Please call The Law Offices of Barbara Buxton, P.A. if you are interested in learning about advanced estate planning strategies that will eliminate or reduce your estate and gift taxes.

How can an estate plan prevent a conservatorship or guardianship proceeding?

An estate plan uses several tools which can prevent the court from gaining jurisdiction over your affairs.

  • A Durable Power of Attorney allows you to authorize a person to act in your place in the event of your incapacity; this attorney-in-fact can manage your financial affairs without the need of court intervention.
  • A Living Will is used to determine if artificial life support systems are to be used or withheld.
  • A Healthcare Surrogate is used to appoint a person, in whom you have the utmost trust and confidence, to make decisions regarding health care treatment when you are unable to provide informed consent.
  • A Trust, Family Limited Liability Company or Family Limited Partnership is used to hold property; the Trustees, managing members or Partners manage the property held by any of these entities. The Trust, the Family Limited Liability Company or the Family Limited Partnership continue to manage the property even if you are incapacitated.

Even a basic estate plan can help you prevent the high cost of a conservatorship or guardianship proceeding.

How can I provide for my pet after my death?

A person cannot leave an estate directly to a pet. If you want to leave money to care for a pet, you must create a pet trust and appoint a trustee and then instruct the trustee to use the money for the pet's care.

Do I have to use an attorney for my estate plan? How much does it cost?

Only an attorney who regularly practices in the fields of wills, trusts and estate planning is able to provide you with sound legal advice and analysis as you put your estate plan into place.

Often the expense incurred in retaining an attorney to prepare and help you put an estate plan into place is worth hundreds of times what you and your family would pay with no planning or poor planning. It would also avoid the financial and emotional nightmares that can occur with a poorly drafted (or improper) plan.

Contact an Experienced South Florida Estate Planning and Probate Attorney

Please contact our office to schedule an appointment to set up an estate plan that is tailored to meet your needs and that can give you peace of mind. We can also prepare documents to avoid a possible guardianship and probate administration.

The Law Offices of Barbara Buxton, P.A. is a South Florida law firm that is devoted to the areas of estate planning, probate, trusts & estates, wills, asset protection, elder law and Florida Medicaid planning & eligibility, guardianship, business and corporate law, real estate and transactional law, and litigation related to these areas. From within the Tri-county area our law firm represents clients from Miami-Dade, Broward and Palm Beach Counties.

Please call 305- 932-2293 to schedule an appointment with an experienced Greater Miami, North Miami and Aventura, Florida, Probate and Estate Planning Attorney. Barbara Buxton, P.A. represents clients throughout Miami-Dade County, Florida including: Aventura, North Miami Beach, Bal Harbour, Golden Beach, Hialeah, Miami, Sunny Isles Beach, Miami Beach, Miami Lakes, Miami Shores, Miami Springs, Miami, South Beach, North Miami and Surfside.

Please call 954-760-7077 to schedule an appointment with an experienced Greater Fort Lauderdale, Hollywood, and Pembroke Pines, Florida Probate and Estate Planning Attorney. Barbara Buxton, P.A. also represents clients throughout Broward County, Florida including: Coconut Creek, Cooper City, Coral Springs, Davie, Deerfield Beach, Fort Lauderdale, Ft Lauderdale, Hallandale Beach, Hollywood, Lighthouse Point, Miramar, Pembroke Pines, Plantation, Pompano Beach, Tamarac, Weston, and Wilton Manors. Please ask about our office location in Broward County.

Please call 954-760-7077 or email to schedule an appointment with an experienced Estate Planning and Probate Attorney serving Palm Beach County. Palm Beach County, Florida is comprised of Boca Raton, Boynton Beach, Delray Beach, Palm Beach, Palm Beach Gardens, Royal Palm Beach, and West Palm Beach.

Aventura Corporate Center
20801 Biscayne Boulevard
Suite 400
Miami, FL 33180

305-932-2293 Miami-Dade County
954-760-7077 Broward County