Category Archives: Estate Planning

Real estate property is likely one of the biggest assets you possess. What happens to your home after you pass away depends on various factors. There are many ways to ensure your home goes to your desired beneficiaries with a comprehensive estate plan. Below, we discuss the different scenarios of what happens to your home after you pass away.

With a Will

In a will, you can name a specific beneficiary who you would like to inherit your home or other real estate property. However, the beneficiary will not be entitled to the property deed until probate proceedings conclude. During probate, the entire estate is valued, and debts are paid. As long as the home did not need to be sold to pay off estate debt, the property will go to the beneficiary you named in your will.

Without a Will

 When you pass away intestate (without a will), Florida’s intestate laws determine who is eligible to receive your assets, including any real estate property you own. The estate will go through probate just as it would if you had a will, but the intestate line of succession will specify who is entitled to the asset. The intestate line of succession is as follows:

• Surviving spouse
• Children and grandchildren
•  Parents
•  Siblings and their families (including nieces and nephews)
• Blood relatives
• The state

With a Mortgage

Mortgage debt is handled differently than other estate and consumer debt after you pass away. While debts from things like credit cards are paid off from the entire estate’s value, a mortgage is not required to be paid off when the person who owns it dies. Who is responsible for the mortgage varies depending on the mortgage type and what will be done with the property.

 If you had a co-signer on the mortgage, that person is responsible for making payments. If you named a beneficiary in your will to inherit your home, your beneficiary would be responsible for taking over the mortgage once the probate process is complete. If no one desires to own the house, your beneficiaries may sell it and place the profit into the estate bank account. In the meantime, your estate’s personal representative (executor) is responsible for ensuring mortgage payments are made. If the personal representative fails to make payments or no one takes over the mortgage, the bank will foreclose on the home.

When You Have Other Debts

During probate, your entire estate value is assessed (including the value of your home). After the formal notice of administration, the personal representative will notify any known creditors that the estate is in probate. Creditors have 90 days to file claims. These claims are paid from the value of the estate. If your debts equal or exceed the value of your home, it may be sold to pay off the debts.

With an Enhanced Life Estate Deed

An enhanced life estate deed (also called a Lady Bird Deed) allows you to automatically transfer property to a named beneficiary without going through probate or placing the property in a trust. These deeds give property owners complete ownership rights while alive.

With a Trust

Placing real estate assets in a trust is a common way to avoid probate. With a trust, a trustee manages the distribution of assets to named beneficiaries.

Boutty Law Firm: Central Florida Estate Planning and Real Estate Attorneys

To ensure your primary residence or other real estate property is transferred to your desired beneficiaries efficiently, you will want to create a complete estate plan. What happens to your home after you pass away depends on a well-formed estate plan. Call our office at 407-710-0461 to speak with the estate planning attorneys at the Boutty Law Firm. We handle the estate planning needs of Winter Park, Orlando, and Central Florida residents.

A will is a legal document that allows you to specify how you would like your possessions and property distributed to family, friends, and charitable organizations after you pass away. A will is the most comprehensive way to explain your last wishes to your loved ones. After passing, your will goes through the probate process to ensure its validity and properly distribute your assets. For a will to be valid in Florida, it must adhere to the requirements stated in Chapter 732.502 of the Florida Statutes. Here is how to ensure you create a legal will in Florida. 

Be Legally Eligible

The first requirement for a will to be valid in Florida is to ensure the person creating the will (called the testator) is legally eligible to create one. You must be over 18 or an emancipated minor to make a will. You must be of “sound mind” and understand the full effect of the document you create. Your will should also be made freely and voluntarily, not under the threat of force or coercion. 

Get it in Writing

Wills must be written, typed documents. Handwritten (also called holographic) or oral wills are not valid in Florida unless considered legal in another state. Wills can also be submitted and signed electronically. No official phrasing or terms need to be included in the document for it to be recognized as a will. 

Properly Signed by the Testator 

According to Florida statutes, the testator must sign a will at the end of the document to be valid. The testator can use any mark as a signature; it does not need to be their full name. However, the testator must acknowledge the mark as their signature. If the testator cannot write, they may appoint someone else to sign it on their behalf. 

Have it Signed by Two Witnesses 

Two witnesses need to sign the will for it to be valid. Witnesses can be anyone the testator desires, as long as they are mentally competent and understand what they are signing. It is recommended that the two witnesses are not named beneficiaries in the will, but this is not a requirement according to Florida law. 

Modifying a Will 

There are a few options if you previously created a valid will and want to make changes. One way is to create a new will and revoke the old one. When creating a new will, you should state that the new will revokes the older version. To avoid confusion, destroy any older versions and only keep the most recent document on hand. You can also modify a will by creating a codicil, or amendment, to the original document. Codicils work well when changing a small portion of the will without revoking the entire document. Like a will, codicils must be signed by two witnesses.

Contesting a Will 

Someone can contest a will if they believe it was made under duress or undue influence, meaning you were pressured or persuaded to make the will. A will may also be contested if a potential beneficiary believes they were unfairly left out or removed from it. 

Boutty Law Firm Creates Valid Florida Wills 

One way to ensure your will is valid is to have an experienced estate planning attorney review it. It is wise to seek legal counsel to ensure the probate process is simple and efficient for your family members. Call our office today at 407-710-0461 to schedule an appointment.

Probate is the process of executing a decedent’s will and distributing their assets to beneficiaries. While having a will is an important part of estate planning that ensures your loved ones know how you would like your estate to be handled, sometimes family members disagree about executing the will. When this happens, the will can be formally challenged in a process called contested probate. We discuss contested probate in detail below.  

Understanding Probate

Contested probate occurs when anyone with a vested interest in the decedent’s last will and testament formally challenges its validity. Someone may challenge a will if they believe they were unjustly removed from it, it was not properly executed, or it was inaccurately drafted. When probate is contested, a formal challenge (or petition) is submitted to the probate court, and a judge decides on the will’s validity. 

 

Reasons for contesting a will 

There are several reasons someone may contest a will. In these situations, the burden of proof lies with the person challenging the will. 

Validating the document 

For a will to be valid in Florida, it must meet the requirements stated in Florida Statute 732.502, such as being signed at the end of the document by the decedent and two witnesses. If the document was not properly signed or witnessed, it could be contested or revoked. 

Undue influence 

Undue influence is one of the most common ways wills are contested. Undue influence means that the will was drafted or altered due to forceful manipulation by someone who would substantially benefit from it. The person challenging the will must offer evidence that the decedent was pressured or persuaded into drafting the will in a particular way to benefit another person who was active in its creation. 

Improper removal

If someone believes they were unjustly removed from someone’s will, they can dispute it. The person may prove they were included in a previous version and that the decedent was removed by mistake or unjustly.

Capacity

The person must be of sound mind and full mental capacity to draft a will. If someone proves that the decedent was not fully aware of the will they were preparing, it could be challenged and considered invalid. The person challenging the will would have to provide evidence that the decedent had a persistent condition such as dementia or Alzheimer’s that prevented them from signing the document willfully. They may also provide evidence that the decedent suffered from delusion, meaning they were legally “insane,” which would invalidate the entire will. 

Under duress

If it is proven that someone signed or modified a will under the threat of physical harm to themselves or a loved one, the will could be challenged in court. 

Fraud

A fraudulent will is made under false pretenses, such as drafting a will based on false information from a noted beneficiary.

 

How to contest a will 

Generally, a will can be contested within 90 days of the notice of administration, the formal start of the probate process. Beneficiaries or other interested parties may challenge a will. A formal petition must be presented to the probate court where probate is taking place (the county where the decedent resided). The petition should specify whether the will should be revoked, modified, or invalidated and why the will is challenged. Once the estate is notified, the case will be settled or go to a hearing for a judge to determine the will’s validity. 

Florida contested probate attorneys 

Challenging a will can be a complex legal process, so it is beneficial to have experienced probate attorneys at The Boutty Law Firm represent you to contest a will’s validity. Call us today at 407-710-0461 for a consultation. 

It is a new year, which means you may be thinking about starting a new business. Launching your business begins with choosing the right entity, accounting for your future business goals. In Florida, there are various options available when establishing your business. Here are the most popular business entities and the advantages and drawbacks of each type. 

Sole proprietorship

Sole proprietorships are the most common business structure. New businesses are automatically classified as sole proprietorships in Florida unless registered with the state. Sole proprietorships are owned and operated by individuals; there is no distinction between the business and the person. If you want to establish a different business name, you will need to register your sole proprietorship under a fictitious name, called a DBA (“doing business as”). DBAs must be registered with the state.

Advantages

Sole proprietorships are quick and easy to set up. They require almost no paperwork and are set up automatically.

Disadvantages 

Since there is no distinction between the owner and the business, sole proprietors are liable for personal and business assets. This means someone can sue a sole proprietor for their home and other personal assets, not just their business profits. 

Limited Liability Company (LLC)

Another typical business structure is an LLC. LLCs may be operated individually or with several employees and contractors. LLCs must be registered with the state and keep up yearly registration fees and licenses, depending on the type of business. 

Advantages

LLCs are separate business entities that are not tied to the business owner’s personal assets. If someone were to sue an LLC, they could only sue for the business’ profits. LLCs allow for distinguished business structures without the formalities of a corporation. 

Disadvantages 

LLCs require some paperwork to set up and be registered yearly with the state. LLCs require separate accounting for the business, which increases paperwork and tax preparation costs.

Corporations 

Corporations are entirely separate entities from individuals or business owners. Essentially, a corporation can act as an individual: loaning and borrowing cash, filing lawsuits, hiring employees, and entering contracts. Business ownership is obtained by purchasing stocks in the business. While many individuals may operate a corporation, shareholders are the business owners.

Advantages

The advantages of creating a corporation are that it is self-sufficient and runs separately from business operators. Forming a corporation may be a good idea if your future business goals include international expansion. 

Disadvantages 

Corporations have strict guidelines and laws they must follow. Detailed record keeping is required, and accounting records must be submitted to the state to ensure legal operation. There are also more taxes involved with forming a corporation. 

Non-profit 

A non-profit is a charitable corporation formed for philanthropic, educational, scientific, or religious reasons. Non-profits are run by a board of directors and operated by individual employees or volunteers. Non-profits must apply and be approved for 501(c)3 (tax exemption) status. 

Advantages 

Non-profits are tax exempt, by far one of the most significant advantages of this business entity.

Disadvantages

There are many policies non-profits must follow. This type of business structure is only available for certain kinds of businesses. 

Boutty Law Firm: Orlando business attorneys 

The Boutty Law Firm can help ensure your new business is in good legal standing. We can help you file paperwork to get your business affairs in order, as well as draft up employee contracts and help file quarterly reports. Contact us at 407-622-1395 to learn how we can help your business grow. 

A trust is a common way of transferring wealth from one generation to another as a part of an estate plan. Depending on your estate, having a trust may have several advantages. Below, we discuss the different types of trusts so you can evaluate which one should be a part of your estate plan. 

What is a trust? 

A trust is a fiduciary relationship between a trustor (the person creating the trust), a trustee (the person managing it), and beneficiaries (those receiving the assets of the estate). A trust is a way of transferring the property and assets of an estate without going through the probate process after the trustor passes away. Trusts cannot be contested in court, which speeds up the process of dividing assets. Trusts go into effect once created, even if the trustor is still living. Trusts give trustors and trustees more control of their assets and estate division. However, they are generally more expensive to establish and must be regularly managed. Every trust must include a trustor, a trustee, a successor trustee, and beneficiaries. There are many different types of trusts to serve the needs of your estate. Below, we discuss the most common ones. 

Living trusts

Living trusts are established when the trustor is still living and managed during their lifetime. They can be changed and altered after their creation. While the trustor is still living, the property and assets within the trust are owned by them. A living trust becomes “operational” after the trustor’s passing. A living trust may be revocable or irrevocable. 

Revocable trusts

Revocable trusts are a type of living trust with the purpose of avoiding probate. Once the trust is set up, no lawyer or court fees will need to be paid. Once the trustor dies, the property in a revocable trust is immediately transferred to the named beneficiaries.

 Irrevocable trusts 

Irrevocable trusts are often established for tax reasons. These types of trusts cannot be altered or revised. The trustor loses control of the assets in this trust when creating it. These types of trusts help with planning for Medicaid, gifts, and tax from life insurance payouts. 

Testamentary trusts 

Testamentary trusts are trusts that are established from instructions in someone’s will. This type of trust allows a trustee to distribute estate funds to beneficiaries after the trustor passes away. The will’s executor is in charge of this type of trust. These trusts reduce estate tax liabilities but still need to go through probate. Another benefit of these trusts is that you can name minors as beneficiaries and establish milestones or timeframes that will give them access to the assets in the trust, such as when they turn 18 or graduate college. 

 Charitable trusts 

Charitable trusts are trusts established to gift funds or assets to charity after the trustor passes away. Charitable trusts reduce or avoid the estate tax liability of the gift. 

Maitland estate attorney: Boutty Law Firm 

An experienced estate planning attorney at the Boutty Law Firm will help you determine which type of trust is best for your particular estate. We will also walk you through other estate planning options based on your needs. Call us at 407-622-1395 to schedule a consultation.