As the South Florida “fall” weather drops three degrees and pumpkin lattes start making you nauseous, it is the perfect time to talk about some genuinely frightening situations where estate planning can change your family’s path forever.
At OC Estate & Elder Law, we know life can be a lot like Halloween: you never know what is lurking in the shadows, but you can be prepared for it. With 15+ years of experience in estate planning, creating family trusts, and probate administration, our attorneys know how to spot trouble before it strikes. The right plan will save your family, your real estate, your business, and the people you have worked so hard to protect.
And there is one thing we don’t want to be scary: understanding your lawyer. Our attorneys speak English, Spanish, and Russian, because legal advice is only helpful if you actually understand what your lawyer is saying. There is no reason to sit through a meeting wondering whether your attorney just said “probate” or “poltergeist.” We take the time to explain your options clearly and in your native language.
Note: While we are having a little Halloween fun with the theme of this article, estate planning is serious business. Our firm approaches every client’s situation with professionalism, care, and attention to detail.
👻 A Frightening Family Feud
Nothing can turn a loving family into a frightening feud faster than an inheritance dispute. Without a clear plan, even the closest relatives can end up battling over money, property, and possessions. Sometimes it is not even money – many family feuds are over sentimental items passed down from mom and dad. A well-crafted estate plan can help keep the peace by making your wishes clear before the ghosts – and their lawyers- come knocking.
🦇 The Small-Business Bloodsucker
Do you own a business in Florida? Then you have another potential Halloween horror story to consider: What happens to your business if you suddenly die?
You may have spent years building your company, growing your customer base, and keeping the business running. But without a plan for what happens next, all of that hard work could be put at risk.
A proper business succession plan can help keep your company from disappearing into the night. It can address important questions such as:
1. What Happens To Your Ownership Interest?
Your estate plan can provide for the transfer of your LLC interest or corporate shares to your trust, when appropriate, so your business interests are handled according to your wishes.
2. Who Takes The Reins?
Your company’s operating agreement or bylaws can help establish who will have authority to manage the business if you unexpectedly die. These documents can also address who has the first opportunity to inherit or purchase your ownership interest.
3. Who becomes your new business partner?
If you have business partners, you may not want a stranger—or a relative you have never met—to suddenly become your partner. A well-drafted agreement can help you and your partners decide in advance who can step into that role and what happens to a deceased owner’s interest.
A little planning now can keep your business from becoming the next victim in a corporate horror story. Because when it comes to business succession, it is much better to choose who sits at the conference table with you than to let Florida law choose for you.
🧙♀️ The Guardian Ghoul
For parents of minor children (under 18 years of age) in Florida, here is a truly scary thought: without naming a guardian, the courts decide who raises your children if something happens to you. If you have children under 18 years of age, you can specify who will be the Guardian of your children in case you and the other parent pass away. This is done through a Last Will and Testament (“Will”). This reduces lawsuits that arise over custody in cases of sudden or unexpected death. Guardians become responsible for your children’s health and wellbeing as well as giving your children a home. Don’t let this decision fall into unknown hands – make your wishes known through proper estate planning.
Our Pets, our Fur Babies (or Bird Babies, as with Parrots)
Pets become family members, and you can make provisions for the care and future of your pets after your death. You can choose a caregiver, often referred to as a “pet guardian” as well as allocate financial resources to this caregiver that are specifically designated for the care of your pets. This can cover expenses such as veterinary care, grooming, food, and other necessities.
Probate’s House of Horrors
Even after Halloween is over, one fright can linger long after the ghosts and goblins have gone: probate court. When a loved one dies, their estate may be pulled into the dark, bureaucratic probate process, where paperwork piles up, heirs sit in waiting, and everyone else seems to get their money before you do.
Probate Administration is the legal court process that becomes necessary when someone passes away, and assets or accounts are held in that deceased person’s name (the “decedent”). For those assets or accounts to pass to the correct people (called heirs or beneficiaries), a court process needs to be started in the county of permanent residence as listed on the decedent’s death certificate. Once the probate court process is initiated in the proper county, the judge appoints a trusted individual to pass on these assets to the rightful recipients. This trusted individual appointed by the court is known in Florida as a personal representative, or in other states, an executor.
Many people are surprised to find out that even if the decedent had a valid Will under Florida Law, the Will still needs to be admitted to probate court. Ultimately, the assets will be distributed to the beneficiaries listed in the Will, but that is only at the end of the long and complex probate process and only with a court order.
Avoiding the Probate Pitfall
Our job is to make sure you do not fall privy to the tricks of Probate; instead, here is a guide to protect yourself and your loved ones from this terrifying process.
🧙♀️ Trusts: The Good Witch’s Warning Against Probate
A trust is like a powerful shield for keeping your assets out of probate. With a revocable living trust, you can move assets into the trust during your lifetime while still maintaining control. When you die, the assets can automatically pass to the beneficiaries you have chosen without going through probate. Trusts can offer flexibility, privacy, and a way for you to keep control of your money.
Joint Ownership: Sharing the Spell
In some cases, owning property jointly with rights of survivorship can help an asset avoid probate. When one owner dies, the property generally passes automatically to the surviving owner. It can be a simple solution for certain assets, including a home or your bank account, but joint ownership is not the right spell for every situation. There can be legal, financial, and family consequences to consider before adding someone as a joint owner. Before adding a joint owner, talk to your attorney, as homestead issues and unexpected tax bills can come back to haunt you.
✍️ Beneficiary Designations: Naming Your Heirs
Many financial accounts, including retirement accounts, life insurance policies, and certain bank accounts – allow you to name beneficiaries. When you die, those assets pass directly to the people you have named, without going through probate. Every financial institution has its own paperwork, so be sure to speak to your representative to ensure you have properly completed their beneficiary designation process. Also remember to review your beneficiary designations regularly. An outdated designation could send your assets to the wrong person—or even an ex-spouse!
💰 Payable-on-Death (POD) and Transfer-on-Death (TOD) Designations: A Quick Escape from Probate
Payable-on-death (POD) and transfer-on-death (TOD) designations can provide another way for certain bank and investment accounts to avoid probate. By naming a beneficiary, you can direct the financial institution to transfer the account after your death. It can be a simple, speedy escape route—but, as with any estate planning tool, it’s important to make sure the designation fits with your overall estate plan.
🎃Don’t Wait Until It’s Too Late
Think you are too young for an estate plan? Think again. Life doe not wait until you are “old enough” to throw an unexpected curveball. Waiting for the perfect time can leave your family scrambling when they least expect it. Do not let procrastination become the real horror story—plan now, while you are here to make the decisions.
Schedule a consultation with Natasha Chipiga or Fernando Orrego today. Our experienced South Florida estate planning attorneys know that all of these spine-chilling scenarios are common, predictable, and completely preventable with a little planning and the right guidance. Give us a call at (954) 251-0332 or email us at info@ocestatelawyers.com to schedule your consultation. Our law firm conducts consultations over the phone or by Zoom, in English, Spanish, or Russian.
