I don’t have children. Do I still need an estate plan?
Yes. An estate plan encompasses more than passing an inheritance to children or ensuring your desires for Guardianship of those minor children are communicated after your passing. Whether bequeathing your estate to other family or to charitable organizations, these wishes can and should be clearly outlined in a proper estate plan.
Do I still need a Will if I have a Revocable Trust?
Yes. In this instance, it is a unique “Pour-Over” Will used to distribute miscellaneous personal effects and other assets not otherwise placed in the Trust. This serves as a safety net in case any assets are overlooked.
Is anyone qualified to prepare a trust for me?
No. A trust should be prepared by an experienced, licensed attorney working primarily in the area of Estate Planning.
If the value of my estate is less than the applicable estate tax exemption, do I need a trust?
Yes. Having a trust can help avoid probate and guardianship court proceedings.
Are there any ongoing legal expenses for a Living Trust?
No. A Living Trust incurs no ongoing maintenance or other legal expense once it has been set up.
Can I be my own trustee?
Yes. It is common for an individual to act on his or her own behalf, while living and competent, in the capacity as trustee.
Can I add to or withdraw assets from my trust after it has been created?
Yes. New property and accounts can and should be added, and existing assets can be sold at any time. Your attorney should give you complete instructions on how to do so.
What if I move to another state – is my trust still valid?
Yes. Living Trusts are valid in all 50 states and recognized by all states no matter the state in which they originally were created.
If I have real property in another state, can I transfer that property into this Living Trust?
Yes. Not only can a Living Trust hold real property in another state, it should be done in order to ensure that probate – and associated costs – does not occur on that property in the other state.
Can I change the terms of the document after it has been signed?
Yes. The Revocable Living Trust can be amended as often as you like. In fact, if at some time in the future you wish to terminate the Trust completely, that also is possible.
Will transferring assets to my Revocable Living Trust shield or exempt them from creditors?
No. In Florida, public policy prevents avoidance of creditors through the use of a trust which you created for your own benefit. However, if another person, such as your spouse, created the trust for your benefit, the assets might be exempt from creditors if the Trust was drawn accordingly. There are also other available steps to shield against creditors with which we can assist clients.
Does the Revocable Living Trust change or increase any income tax or its reporting?
No. In fact, when you are the trustee, you can ignore the trust and report your taxable income and deductions on your Form 1040 the same as you did before the Trust was established.
I’m a Florida resident for tax reasons, but I also have other assets up north in my former state of residence. Should I have a Florida Revocable Living Trust?
Yes. You most definitely should establish your Revocable Living Trust in Florida. If you’ve wisely decided to make Florida your domicile to save taxes, you should follow through with this plan not only to eliminate the possibility that your northern assets will have to be probated, but also to attempt to avoid additional state inheritance taxes in that state.
Is the Revocable Living Trust appropriate for everyone?
No. While Revocable Living Trusts are beneficial for the great majority of people, they are not for everyone. Establishment of a Revocable Living Trust should be decided upon only after analyzing your specific circumstances with your attorney. Before proceeding with a Living Trust, discuss your particular situation openly with a qualified attorney.
Can Advance Directives or Guardianship Provisions for my minor children be changed?
Yes. You can change your Living Will, Advance Directives and Guardianship Provisions at any time. If certain family or friends are more or less involved in your lives down the road, one can always make amendments to the documents.
Do I need a lawyer?
It always amazes us that many people will buy or sell property, involving thousands or even millions of dollars, without counsel. They will sign lengthy, complex documents thick with legal terms that they do not understand, without having a trained legal professional review the documents for them. Don’t do it. While many sales work out without a significant problem, why take a chance when you have so much at stake?
What will an attorney do for me?
He or she will prepare or review the Contract, and explain its provisions to you, obtain and review a title search, check for unrecorded municipal liens, prepare or review the Closing Statement to ensure the accuracy of all charges, prepare or review the Deed, Bill of Sale, Affidavits and all other closing documents, and advise you regarding the best way to take title, if you are buying.
When should I hire an attorney?
By all means, before you sign the Contract. Once the Contract is signed, your attorney can only help enforce the deal that you have made.
Are all Contracts a standard form?
First, there are a number of different “standard form” Contracts used in this region, and certain forms may be more advantageous for you in your particular transaction. Second, while there are many good Realtors, it is very common to see Contracts that are incomplete, with missing information, blanks unfilled and boxes unchecked, as well as those with errors. If you want your Contract to be enforceable, have your lawyer prepare or review it before you sign.
Do I have to attend Closing in Person?
You may, but it is not required. The days of both parties sitting down at the closing table together still exist, but are now more the exception than the rule. Buyers obtaining a mortgage loan typically sit with the attorney to go through and sign the papers comprising a voluminous loan package. Cash buyers and sellers can easily pre-sign the documents, wire transfer the funds and skip the traditional, ceremonial closing. For out-of-town parties, we often over-night documents to them with signing instructions.
What is Title Insurance and Why do I need it?
Hidden defects in the title sometimes exist and are undetected no matter how thorough an exam is done. Title insurance protects you against problems such as disputed ownership and unknown mortgages or liens. The Title Insurer will pay the legal expenses to defend your title and settle any claims. This is so critical, that every mortgage lender insists that they are provided with title insurance before they close a loan. No prudent buyer, in a cash or financed deal, will purchase property without it.
What does the Title Insurance Cost?
The rates are set by the State Department of Insurance and depend upon the purchase price of the property. It therefore costs the same regardless of whether your attorney or a title company provides the title insurance to you. Unlike all of the other types of insurance in our lives, you only have to pay for title insurance once, at the time of the closing.
Who Pays for Title Insurance?
That depends on the County where the property is located. In some counties including Broward, Miami-Dade and Monroe, it is customary for the buyer to pay for title insurance, while in others, including Palm Beach County, the seller generally pays. This is negotiable, so a Contract will occasionally override the custom. Just another reason to have your attorney review the Contract before you sign it.
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