When someone dies, their property, be it real estate, bank accounts, stocks, bonds, jewelry, automobiles or whatever that person owns must pass to someone legally entitled to those assets. There are 3 basic ways through proper estate planning that property passes on death. Each way depends on how the particular asset is owned or titled at the time of death.
1. Probate. If someone owns an asset in his or her own name at the time of death, that asset should pass to the deceased beneficiaries that are specified in his or her will. If the decedent did not have a will, then the property owned by the decedent will pass under the laws of intestacy. In other words, the state of Florida makes a will for the decedent. This doesn’t mean all of the decedent’s property passes to the state but rather to individuals depending on their relationship to the decedent.
Florida statutes 732.102 and 732.103 set forth the statutory scheme for intestate succession. For example, if a man dies without a will but is survived by a spouse and children of that marriage, then the surviving spouse is entitled to the first $60,000.00 of assets and anything over that amount is equally divided between the surviving spouse and the children.
When property passes by the terms of a last will and testament or by intestate succession, the process by which this transfer is accomplished is called probate. Probate is essentially a court-supervised process whereby a decedent’s property is transferred in an orderly fashion to the ones legally entitled to those assets.
2. Trusts. Some people elect to create a revocable “living” trust during their lifetime. Here, the trust assets are typically titled in the name of the trust. The grantor, the one creating the trust, has full power to change, modify and revoke the trust during his or her lifetime. After the death of the grantor, these trusts usually terminate and the disposition of the property held in the trust will be governed by the terms of the trust. These type of trusts typically contain language very similar to language used in a last will and testament, which specifies how and to whom the decedent’s property will pass. A successor trustee named in the trust document would then have the responsibility of effectuating the terms of the trust and to make sure the intended beneficiaries receive what the decedent intended. The administration of the trust is also similar to the probate process but is not subject to court supervision.
3. By contractual provisions. Assets subject to contractual provisions pass outside the probate process and the trust process. These assets pass directly to the recipients designated in the contract that governs that asset. The most prevalent type of asset that passes by contract would be a joint bank account. Typically a bank account titled in two or more names will pass to the survivor. Other types of contractual bank accounts include the payable on death account, or the “held in trust for …” account, a Totten trust as these types of accounts are sometimes called. Other forms of contractual arrangements which pass property directly to a named beneficiary include life insurance policies, retirement accounts, and annuities.
Why someone should engage in estate planning. While each of these areas is discussed in greater detail in other articles, this basic outline should illustrate how important it is to make sure that you understand how your assets are titled and how they will pass on death. The unintended consequences of improperly titling your assets could have a devastating effect on your estate plan. For those with substantial wealth, estate planning from a tax perspective can save on income and estate taxes.
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