Walser Law Firm

What is the Probate Process in Florida?

Tue, 02 Jun 2026 19:50:14 GMT

When a loved one passes away, it can be challenging to understand how our complicated legal system works, which is why many individuals come to us with a common question: What is the probate process in Florida?

It’s a difficult time for everyone involved, but understanding the probate process can help you and your loved ones move forward. And luckily, it’s less complicated than you’d think.

A probate is a process used in court to handle a loved one’s estate after death. State laws vary, and it’s important to understand the differing timelines and statutes that come into effect when this happens. In Florida, a probate is almost always required when someone passes away. For that reason, knowing the ins and outs of the probate process in Florida is paramount in correctly handling the wills and estates. This includes understanding how to avoid probate in Florida, along with the particular steps one must take to ensure a satisfactory result.

Who Can File Probate in Florida?

When it comes to understanding probate rules and processes, it’s important to know who can file probate in Florida. An executor, or personal representative, is most often the person tasked with handling the duties toward transferring property from the decedent’s estate to the heirs. These duties can include:

Executors should meet with an attorney to facilitate these duties, and eventually file a petition with the probate court to begin the legal ramifications. The attorney will go over any wills and death certificates, and identify any of the debts one may owe postmortem. A key thing to remember is that while a probate attorney is there to guide you, it’s important to have an idea of these things before meeting with them to avoid confusion.

The Legal Probate Process in Florida

Assets left by the decedent are usually distributed through the provisions of their will. They can pay the cost of the probate proceedings, if provided. In cases of intestacy, Florida has specific rules regarding where these assets go, and in most cases it goes to the decedent’s spouse if applicable. But if a personal representative is named, it becomes their responsibility in handling these assets. These assets can be anything from:

How to Avoid Probate in Florida

The easiest way to avoid Probate in Florida is if the decedent provided a trust in their will. This can include an inter-vivos trust, or a testamentary trust, and is given to a person or institution named as the trustee who is responsible for administering this document.

The difference between a trust administration and probate is that a trust administration is not a court-supervised process. As a result, probate is not necessarily required if the decedent had a properly drafted and revised trust. In this case, a trustee takes on the roles of an executor, and must take similar precautions to administer the trust correctly.

Walser Law Firm, Elder Law and Probate Attorneys

Founded in 1983, our Florida probate law firm has been providing trust and estate legal services in Palm Beach County for over 30 years. Our goal is to properly guide you through the legal processes regarding probate and trust administrations, and to ensure that all parties involved are given proper care throughout the process. Whether it’s creating wills and trusts, estate planning , or handling the probate process, we are here to ease the pressure of the legal proceedings that follow a difficult loss.

If you have questions about Florida probate law, or if you require an attorney, our team at Walser Law Firms are here to help in whatever way we can. Please don’t hesitate to contact us for any concerns or inquiries. We pride ourselves on providing timely responses to any and all inquiries, backed by a dedicated, professional, and compassionate staff here to help you and your needs.

What Is a Power of Attorney in Florida?

Tue, 02 Jun 2026 19:04:18 GMT

What Is a Power of Attorney in Florida?

By Thomas Walser, Florida Estate Planning Attorney (40+ Years of Experience)
Updated June 2026

A Power of Attorney is one of the most important—but most misunderstood—estate planning documents in Florida.

While many people focus on wills and trusts , a Power of Attorney plays a completely different role. It protects you during your lifetime if you become unable to manage your financial or legal affairs.

Without it, even close family members may be unable to access accounts, pay bills, or handle urgent financial matters without court involvement.

For many individuals, especially retirees, a Durable Power of Attorney is a foundational part of a complete estate plan.

This guide explains what a Power of Attorney is, how it works in Florida, who needs one, and why it is essential for protecting your financial future.

What Is a Power of Attorney?

A Power of Attorney (POA) is a legal document that allows one person to authorize another person to act on their behalf in financial and legal matters.

The person creating the document is called the Principal . The person receiving authority is called the Agent or Attorney-in-Fact .

The authority granted depends entirely on the document itself and can be broad or limited.

A Florida Power of Attorney may allow an agent to:

Access and manage bank accounts
Pay bills and financial obligations
Handle real estate transactions
Manage investments
Sign legal documents
Deal with insurance matters
Assist with tax filings and financial records

In short, it allows a trusted individual to step in and manage financial affairs when needed.

However, it does not transfer ownership of assets and does not give authority beyond what is specifically written in the document.

How Does a Power of Attorney Work in Florida?

In Florida, a Power of Attorney is governed by state law and must meet specific legal requirements to be valid.

Once properly executed, the agent may act on behalf of the principal within the scope of authority granted in the document.

Financial institutions and third parties generally rely on the Power of Attorney to confirm that the agent has legal authority to act.

However, those institutions may still require the document to be current, properly drafted, and compliant with Florida law.

The effectiveness of a Power of Attorney depends on clarity. A well-drafted document avoids delays and ensures the agent can act when needed without unnecessary obstacles.

What Is a Durable Power of Attorney?

A Durable Power of Attorney is the most commonly used type of Power of Attorney in Florida estate planning.

The term “durable” means the document remains effective even if the principal becomes incapacitated.

This is extremely important because incapacity is often the very situation where the document is needed most.

Without durability, the Power of Attorney would terminate at the exact moment a person becomes unable to manage their affairs.

A Durable Power of Attorney helps ensure continuity during situations such as:

Stroke or medical emergency
Dementia or cognitive decline
Serious accident or hospitalization
Age-related incapacity

For retirees, this document is especially important because the likelihood of incapacity increases with age.

A Durable Power of Attorney is often paired with a will, trust, and healthcare documents to create a complete estate plan.

Who Needs a Power of Attorney?

Many people mistakenly believe Powers of Attorney are only necessary for older adults. In reality, nearly every adult benefits from having one.

Retirees

Retirees often rely on investments, retirement accounts, and fixed income sources. A Power of Attorney ensures those financial matters can continue without disruption if health issues arise.

Property Owners

Real estate transactions require legal authority. Without a Power of Attorney, even simple property matters can become delayed or blocked.

Business Owners

Business operations may need to continue even if the owner becomes unavailable. A Power of Attorney allows someone to step in and handle critical financial decisions.

Individuals Who Want to Avoid Guardianship

Without a Power of Attorney, families may need to seek guardianship through the court system to manage financial affairs.

A properly drafted document can often reduce or eliminate the need for court intervention.

What Happens If You Do Not Have a Power of Attorney?

Without a Power of Attorney, your loved ones may face significant legal and financial challenges if you become incapacitated.

Common problems include:

Inability to access bank accounts
Delays in paying bills and managing expenses
Difficulty handling investments or retirement accounts
Problems managing real estate or business affairs
Limited ability to communicate with financial institutions

Even immediate family members do not automatically have legal authority to act on your behalf.

In many cases, families must petition a Florida court for guardianship before they can manage financial matters.

Guardianship proceedings can be:

Time-consuming
Expensive
Emotionally stressful
Subject to ongoing court supervision

A Durable Power of Attorney is designed to prevent these complications by allowing you to choose someone in advance.

For more information on court-appointed authority, see our guide on Understanding the Different Types of Guardianship in Florida .

Power of Attorney vs. Guardianship

Although they serve similar purposes, Power of Attorney and guardianship are fundamentally different.

A Power of Attorney is a private legal document created by the individual while they still have capacity.

Guardianship is a court process that occurs when someone is no longer able to manage their own affairs.

Key Differences

A Power of Attorney is chosen by you
A guardian is appointed by a judge
A Power of Attorney avoids court involvement
Guardianship requires court supervision
A Power of Attorney is generally faster and less expensive

While guardianship may still be necessary in some situations, a Durable Power of Attorney often helps avoid or reduce the need for it.

Can a Power of Attorney Avoid Probate?

No. A Power of Attorney cannot avoid probate.

This is one of the most common misconceptions in estate planning.

A Power of Attorney only remains valid during the lifetime of the principal. Once the principal passes away, the authority of the agent automatically ends.

After death, assets are distributed according to:

A will
A trust
Beneficiary designations
Florida intestacy laws (if no will exists)

Some assets may still need to pass through the Florida probate process depending on how they are titled.

To learn more, see our guide on What Is Probate in Florida? or What Happens If You Die Without a Will in Florida?

While a Power of Attorney does not avoid probate, it plays a critical role in managing finances during life and incapacity.

Common Power of Attorney Mistakes

Many problems with Powers of Attorney arise from avoidable mistakes.

Waiting Too Long

If someone loses mental capacity before signing a Power of Attorney, it may no longer be possible to create one.

Choosing the Wrong Agent

The authority granted is significant. Choosing someone without proper judgment or responsibility can create serious issues.

Using Generic Forms

Florida has specific legal requirements. Online forms may not provide sufficient authority or may not be accepted by institutions.

Failing to Update Documents

Life changes such as divorce, relocation, or death of an agent may require updates to your estate plan.

Benefits of Having a Florida Power of Attorney

A properly drafted Durable Power of Attorney provides important protections, including:

Financial continuity during incapacity
Ability to manage bills and obligations
Reduced risk of guardianship proceedings
Faster response during emergencies
Peace of mind for families

It is one of the most practical and protective documents in any estate plan.

Frequently Asked Questions About Florida Powers of Attorney:

What is a Power of Attorney in Florida?

It is a legal document that allows someone to act on your behalf in financial and legal matters.

What is a Durable Power of Attorney?

It is a Power of Attorney that remains effective even if you become incapacitated.

Who should I choose as my agent?

Choose someone trustworthy, responsible, and financially capable.

Can a Power of Attorney avoid probate?

No. It ends at death and does not transfer assets.

What happens if I become incapacitated without one?

Your family may need to seek guardianship through the Florida court system.

What Does Walser Law Firm Do for Power of Attorney Planning?

Walser Law Firm helps Florida individuals and families create Durable Powers of Attorney as part of comprehensive estate planning.

Each document is carefully drafted to comply with Florida law and tailored to the client’s financial situation and family structure.

A properly prepared Power of Attorney ensures that trusted individuals can act quickly and effectively during times of incapacity, without unnecessary court involvement.

Why Choose Walser Law Firm for Estate Planning?

Estate planning is not just about documents—it is about protection, planning, and peace of mind.

With more than 40 years of experience, Thomas Walser has helped individuals and families across Florida create estate plans designed to protect assets and ensure their wishes are followed.

Each plan is built to address both incapacity and inheritance planning in a clear and legally enforceable way.

About Thomas Walser

Thomas Walser is a Florida estate planning attorney with over 40 years of experience helping clients with wills, trusts, probate, guardianship matters, and comprehensive estate planning.

His focus is helping families create clear legal plans that protect their assets and reduce uncertainty during life’s most difficult moments.

Final Thoughts

A Power of Attorney is one of the most important documents in any Florida estate plan.

While it does not control what happens after death, it plays a critical role in protecting you during your lifetime if you become unable to manage your affairs.

Without it, families may face unnecessary legal delays, court proceedings, and financial complications.

A properly drafted Durable Power of Attorney ensures that someone you trust can step in when needed, providing stability and peace of mind.

If you are ready to create or update your estate plan, contact Walser Law Firm to discuss your options.

When Should You Start Estate Planning

Thu, 14 May 2026 18:47:35 GMT

When Should You Start Estate Planning? (The Definitive Age-by-Age Guide for 2026)

By Thomas Walser, Estate Planning Attorney (40+ Years of Experience)

Updated May 2026

Estate planning is often treated like something you only think about later in life.

But legally, that approach is risky.

The truth is simple: estate planning should begin as soon as you become a legal adult, because that is when you gain full control over your medical, financial, and legal decisions.

Without a plan, the state—not you—decides what happens.

This guide explains exactly when estate planning should start, when it is needed, and what to consider at each stage of life in simple, practical terms.

What Is Estate Planning?

Estate planning is the legal process of deciding:

Who receives your assets if you pass away
Who manages your finances if you cannot
Who makes medical decisions if you are incapacitated

In simple terms:

Estate planning ensures your wishes are followed if something happens to you.

A basic estate plan usually includes:

A will or trust
Financial power of attorney
Health care directive

When Should Estate Planning Begin?

Estate planning should begin at age 18

Estate planning should begin as soon as you become a legal adult (age 18).

At this stage:

Parents no longer automatically control your medical decisions
You legally own your assets
The state determines what happens if you have no plan

Even if you only have:

a bank account
a car
or student income

You still need a basic estate plan.

When to Do Estate Planning (Life Events That Trigger Planning)

You should do estate planning immediately when you experience:

Turning 18
Starting a job or career
Opening retirement accounts (401k, IRA)
Getting married or divorced
Having children
Buying property

Key idea:

Estate planning is not age-based—it is life-event based.

When Is Estate Planning Needed?

Estate planning is needed whenever:

You have any assets (no matter how small)
Someone may need to make decisions for you
You want control over medical care
You want specific people to inherit your belongings

Important legal fact:

Without a plan, state intestacy laws decide everything, including inheritance and decision-making authority.

What to Consider When Estate Planning

1. Your assets

Even small assets matter:

Bank accounts
Retirement accounts
Vehicles
Personal property

2. Your medical wishes

You should decide:

Who makes medical decisions for you
What treatments you do or do not want
End-of-life care preferences

3. Legal authority

Once you turn 18:

No one has automatic legal control over you
You must assign power of attorney for medical and financial decisions

4. Beneficiaries

Make sure you regularly review:

Life insurance beneficiaries
Retirement account beneficiaries
Transfer-on-death designations

Estate Planning by Age (Clear Breakdown)

Ages 18–24 (Foundation stage)

Basic will
Health care directive
Power of attorney

Ages 25–34 (Growth stage)

Update beneficiaries
Add life insurance
Begin structured financial planning

Ages 35–49 (Family stage)

Consider a trust
Protect dependents
Reduce probate risk
Plan guardianship for children

Ages 50+ (Legacy stage)

Wealth transfer planning
Tax planning strategies
Charitable and legacy planning

What Happens If You Don’t Have an Estate Plan?

If you don’t create an estate plan:

The state decides who inherits your assets
Your family may go through probate court
Medical decisions may be made by someone you didn’t choose
Your wishes may not be followed

Example:

Even if you intend for a specific family member to receive money, state law may distribute it differently without a will.

Common Estate Planning Mistakes (And How to Avoid Them)

Mistake 1: Waiting too long

Unexpected illness or accidents can happen at any age.

Mistake 2: Thinking you need wealth first

Estate planning is about control—not net worth.

Mistake 3: Not naming decision-makers

Without legal documents, no one automatically has authority.

Mistake 4: Not updating your plan

Life changes—your estate plan should change with it.

Benefits of Starting Estate Planning Early

Starting early gives you:

Full control over medical decisions
Legal protection of assets
Reduced stress for family members
Flexibility to update over time
Peace of mind in emergencies

The best estate plan is one that exists early and evolves over time.

Estate Planning Checklist ( In Depth Guide - click here )

If you’re starting today, complete these steps:

Create a will
Assign financial power of attorney
Create a health care directive
Review beneficiary designations
List all assets
Consult an estate planning attorney

FAQs About Estate Planning

When should I start estate planning?

You should start at age 18 or as soon as you become a legal adult.

When is estate planning needed most?

It is needed whenever you:

have assets
have dependents
or want control over medical and financial decisions

What to consider when estate planning?

Focus on:

assets
medical wishes
legal authority
beneficiaries

Do I need estate planning if I’m young and single?

Yes. Even young adults need medical directives and legal authority documents.

What happens if I die without a will?

State law decides who inherits your assets, which may not reflect your wishes.

What does Walser Law Firm do for estate planning?

Walser Law Firm helps individuals and families create legally valid estate plans, including wills, trusts, and medical directives. The firm ensures clients’ wishes are clearly documented and legally enforceable.

Why choose Walser Law Firm for estate planning?

Walser Law Firm provides personalized legal guidance backed by decades of experience, helping clients protect their assets, families, and medical wishes with clear and enforceable estate plans.

Thomas Walser is an estate planning attorney with over 40 years of experience helping individuals and families create legally sound estate plans, including wills, trusts, powers of attorney, and medical directives.

Over his career, he has guided clients through every stage of life—from young adults setting up their first basic estate plans to families managing complex inheritance and trust structures.

His focus is simple:
Helping people protect their wishes, their families, and their future with clear legal planning.

Final Thoughts

So, when should you start estate planning?

The answer is simple: as early as possible—ideally at age 18.

Estate planning is not about wealth or age.
It is about control, protection, and ensuring your wishes are followed when life doesn’t go as planned.

The strongest estate plan is not the most complex one.

It is the one you start today and maintain over time.

Wills vs Trusts

Thu, 14 May 2026 17:01:45 GMT

Will vs. Trust in Florida: Which Estate Plan Is Right for You?

By Thomas Walser, Florida Estate Planning Attorney

Updated May 2026

When creating an estate plan in Florida, one of the most important decisions you’ll make is whether you need a will or a trust. While both documents help protect your assets and your loved ones, they work very differently under Florida law.

For many retirees, snowbirds, and families in Boca Raton and Palm Beach County, understanding the difference between a will and a revocable living trust can help avoid probate, reduce stress for loved ones, and create a smoother transition during illness or incapacity.

One of the biggest misconceptions in estate planning is believing that a will avoids probate. In Florida, that is usually not the case.

Below, we explain the key differences between wills and trusts in Florida, when each may be appropriate, and how proper planning can help protect your family and your future.

Quick Answer: Will or Trust in Florida?

A will directs how your assets are distributed after death, but it generally must go through probate court in Florida. A revocable living trust, on the other hand, can help families avoid probate, maintain privacy, and manage assets during incapacity or illness.

For many Florida retirees, high-net-worth families, and snowbirds, a trust provides greater flexibility and long-term protection.

What Is a Will in Florida?

A will, also called a Last Will and Testament, is a legal document that explains:

who receives your assets after death,
who will manage your estate, and
who will serve as guardian for minor children.

A will only becomes effective after death. In most cases, assets controlled by a will must still pass through the Florida probate process before beneficiaries receive their inheritance.

Probate is the court-supervised process used to:

validate the will,
identify heirs,
pay debts and creditors, and
distribute assets.

While a will is an important estate planning document, it does not typically avoid probate in Florida.

What Is a Revocable Living Trust?

A revocable living trust is a legal arrangement that holds ownership of your assets during your lifetime and allows those assets to pass to beneficiaries outside of probate court.

In most cases, the person creating the trust — called the grantor — remains in complete control of the assets while alive.

A revocable living trust in Florida can help:

avoid probate,
maintain privacy,
simplify inheritance,
manage assets during incapacity, and
reduce court involvement after death.

Unlike a will, a trust becomes effective immediately once it is created and funded.

This can be especially important for elderly individuals or retirees who want a plan in place if they later become unable to manage finances due to illness or disability.

Does a Will Avoid Probate in Florida?

No. This is one of the most common misconceptions in estate planning.

A will does not avoid probate in Florida. Instead, it directs how the probate process should occur.

If assets are titled solely in the deceased person’s name, the estate will usually still need to go through probate administration before assets can be transferred to heirs.

Probate can involve:

court filings,
legal fees,
delays,
creditor claims, and
public records.

For many Florida families, avoiding probate is one of the primary reasons they consider creating a revocable living trust.

How a Trust Helps Avoid Probate in Florida

When assets are properly titled in the name of a trust, they can often transfer directly to beneficiaries without going through probate court.

This may help families:

avoid lengthy probate timelines,
reduce administrative costs,
maintain privacy,
minimize court involvement, and
simplify estate administration.

For snowbirds who own property in multiple states, trusts can also help avoid ancillary probate proceedings outside Florida.

Many retirees in Boca Raton and Palm Beach County use revocable trusts as part of a larger estate planning strategy designed to create a smoother transition for loved ones.

When Should You Consider a Trust in Florida?

A revocable living trust may be beneficial if you:

want to avoid probate,
own real estate in multiple states,
are retired or approaching retirement,
have a blended family or second marriage,
want privacy regarding your assets,
have significant assets, or
want a plan for disability or incapacity.

Trusts are commonly used by Florida snowbirds and retirees because they can simplify estate administration and help families avoid unnecessary delays after death.

They may also help reduce conflicts that sometimes arise in second marriages or blended families.

Common Probate Problems Florida Families Face

Probate administration in Florida can become complicated, especially when estate plans are outdated or incomplete.

Some common probate issues include:

Probate Delays

Even straightforward estates can remain in probate for months while court procedures are completed.

Remarriage and Blended Family Disputes

Inheritance disagreements between surviving spouses and children from prior relationships are common in probate litigation.

Frozen Financial Accounts

Accounts solely in the deceased person’s name may become temporarily inaccessible during probate.

Out-of-State Property Issues

Snowbirds who own homes in multiple states may face additional probate proceedings outside Florida.

Increased Costs

Probate may involve attorney fees, court costs, executor fees, and administrative expenses that reduce the value of an estate.

Is a Trust Worth It in Florida?

For many retirees, elderly individuals, and high-net-worth families, the answer is often yes.

While trusts may require more planning upfront than a simple will, they can provide significant long-term benefits by:

avoiding probate,
simplifying estate administration,
protecting privacy,
planning for incapacity, and
reducing stress for loved ones.

Every estate plan should be tailored to the individual’s goals, assets, and family circumstances.

Will vs Trust in Florida

Key differences between wills and revocable living trusts in Florida estate planning.

Feature Will Trust

Avoids Probate No Yes

Works During Incapacity No Yes

Court Involvement Required Usually Avoided

Privacy Public Record Private

Best For Basic Planning Probate Avoidance & Asset Management

Frequently Asked Questions:

Is a trust better than a will in Florida?

A trust may be beneficial for individuals who want to avoid probate, maintain privacy, or plan for incapacity. A will is still important but generally does not avoid probate.

Does a revocable living trust avoid probate in Florida?

Yes. Assets properly titled in the name of the trust typically avoid probate administration in Florida.

What are the disadvantages of a trust in Florida?

Trusts require proper drafting, funding, and ongoing maintenance. They may also involve higher upfront planning costs than a simple will.

Do retirees in Florida need a trust?

Many retirees use revocable living trusts to simplify asset management and avoid probate for their families.

What happens if you die with only a will in Florida?

Your estate will likely still go through probate before assets are distributed to beneficiaries.

Speak With a Florida Estate Planning Attorney

Choosing between a will and trust in Florida depends on your family dynamics, financial goals, and the type of protection you want for your loved ones.

For many retirees, snowbirds, and Palm Beach families, a revocable living trust can help avoid probate, simplify estate administration, and create peace of mind for the future.

If you are considering creating or updating your estate plan, our Boca Raton estate planning team can help you determine whether a will, trust, or combination of both is right for your situation.

Schedule a consultation today to discuss your estate planning goals and protect what matters most.

Contesting a Will During Probate

Mon, 11 May 2026 19:55:34 GMT

Contesting a Will During Probate in Florida

By Thomas Walser, Florida Probate Litigation Attorney

Updated May 2026

When a loved one passes away, disagreements over inheritance and estate administration can quickly become emotional and legally complex. In Florida, probate is the court-supervised process used to validate a deceased person’s Will, appoint a personal representative, pay debts, and distribute assets to beneficiaries.

While many probate administrations proceed without conflict, there are situations where interested parties may challenge the validity of a Will. These disputes are commonly referred to as Will contests or probate litigation.

If you believe a Will was created improperly, influenced unfairly, or executed while the decedent lacked mental capacity, Florida law may allow you to contest the document during probate proceedings.

What Does Probate Mean?

Probate is the legal process through which a deceased person’s estate is administered. If the decedent left a valid Last Will and Testament, the court generally follows the instructions outlined in that document. If there is no Will, Florida intestacy laws determine how assets are distributed among surviving family members.

The probate court also appoints a personal representative (sometimes called an executor) to oversee the administration of the estate. This individual is responsible for:

Identifying and protecting estate assets
Paying valid debts and taxes
Notifying beneficiaries and creditors
Distributing property according to the Will or Florida law

Because probate is supervised by the court, interested parties have the opportunity to raise legal objections if they believe the Will is invalid.

Who Can Contest a Will in Florida?

Not everyone has legal standing to challenge a Will . Under Florida law, a person generally must have a direct financial interest in the outcome of the estate.

Interested parties may include:

Beneficiaries named in the current Will
Beneficiaries named in a prior Will
Spouses, children, or close relatives who would inherit under intestacy laws
Individuals who were disinherited unexpectedly

A successful Will contest can significantly alter how estate assets are distributed.

Common Reasons for Contesting a Will

1. Lack of Testamentary Capacity

One of the most common grounds for contesting a Will is a claim that the decedent lacked the mental capacity required to execute estate planning documents.

Under Florida law, a person must have “testamentary capacity” at the time the Will is signed. This legal standard is lower than the mental capacity required for many contracts or financial agreements.

To have testamentary capacity, the testator generally must understand:

The nature and extent of their assets
Who their family members and beneficiaries are
How the Will distributes property
That they are signing a Last Will and Testament

Conditions such as Alzheimer’s disease, dementia, or mental illness do not automatically invalidate a Will. In many cases, a person may still have sufficient legal capacity during a lucid interval.

Evidence Often Used in Capacity Disputes

Evidence may include:

Medical records
Physician testimony
Witness testimony
Caregiver records
Prior estate planning documents
Psychological evaluations

For high-value estates or families anticipating disputes, attorneys often recommend a medical evaluation before signing estate planning documents to help reduce future litigation risks.

2. Undue Influence

Undue influence occurs when another person manipulates, pressures, or improperly influences the decedent into changing their estate plan for someone else’s benefit.

These claims frequently arise when:

A caregiver becomes a major beneficiary
An isolated elderly person changes a longstanding estate plan
A family member controls finances or healthcare decisions
A new beneficiary suddenly appears late in life

Florida courts carefully evaluate whether the beneficiary exerted excessive influence over the testator.

Factors Courts Consider in Undue Influence Cases

Florida courts may examine whether the alleged influencer:

Was present during execution of the Will
Recommended the attorney drafting the documents
Knew the contents of the Will beforehand
Directed preparation of the Will
Secured witnesses for execution
Maintained possession of the original Will

Undue influence cases are highly fact-specific and often require extensive evidence, witness testimony, and financial records.

3. Improper Execution of the Will

Florida law requires strict compliance with legal formalities when executing a Will.

Generally, a valid Florida Will must:

Be signed by the testator
Be signed at the end of the document
Be witnessed by at least two competent witnesses
Be signed in the presence of the witnesses and each other

Even small execution errors may create significant probate disputes.

Risks of DIY Estate Planning Documents

Online Will templates and DIY estate planning platforms have become increasingly popular, but improperly prepared documents often create costly probate litigation later.

Common issues include:

Missing witness signatures
Incorrect notarization
Ambiguous language
Contradictory beneficiary provisions
Improper execution ceremonies

Working with an experienced estate planning attorney can help minimize these risks.

4. Revocation of a Will

A Will may be revoked during the testator’s lifetime. In Florida, revocation can occur through:

Creation of a newer valid Will
Physical destruction of the document
Intentional cancellation by the testator

One common issue in probate cases is the inability to locate the original signed Will after death.

What Happens if the Original Will Is Missing?

Florida probate courts strongly prefer the original executed document. If only a copy exists, the court may presume the original was intentionally destroyed and revoked.

However, this presumption can sometimes be overcome with evidence such as:

Witness testimony
Attorney records
Sworn affidavits
Proof of the decedent’s intent

These proceedings often require additional probate litigation and evidentiary hearings.

How Long Do You Have to Contest a Will in Florida?

Florida probate deadlines are strict. In many cases, interested parties may have as little as:

20 days after formal notice of administration to object to the Will, or
90 days in certain probate proceedings involving fraud or newly discovered evidence

Missing a deadline may permanently waive your rights. Because probate litigation timelines move quickly, it is important to consult an attorney immediately if you suspect wrongdoing.

What Evidence Is Needed to Contest a Will?

Successfully contesting a Will typically requires substantial evidence. Depending on the claim, evidence may include:

Medical and mental health records
Financial documents
Emails and text messages
Witness testimony
Caregiver communications
Prior versions of estate planning documents
Expert testimony from physicians or handwriting analysts

Mere suspicion or family disagreement is usually not enough to invalidate a Will.

How a Florida Probate Litigation Attorney Can Help

Will contests can become emotionally charged and financially significant. An experienced probate litigation attorney can help:

Investigate suspicious estate changes
Obtain medical and financial records
Challenge invalid estate planning documents
Defend beneficiaries and personal representatives
Represent clients in probate court hearings and mediation

Whether you are contesting a Will or defending one, early legal guidance can make a substantial difference in the outcome of the case.

Contact Walser Law Firm

If you have questions about contesting a Will during probate in Florida, the experienced probate litigation attorneys at Walser Law Firm are here to help.

We assist clients with:

Probate disputes

Will contests

Trust litigation

Executor misconduct claims

Inheritance disputes

Estate administration

Contact Walser Law Firm today to schedule a confidential consultation and discuss your legal options.

Florida Medicaid Asset Protection Planning | Elder Law Florida

Thu, 07 May 2026 19:28:09 GMT

Understanding Medicaid Asset Protection in Florida

By Thomas Walser, Florida Elder Law Attorney

Updated May 2026

Florida Medicaid Planning and Long-Term Care Protection

Medicaid asset protection planning in Florida is one of the most important parts of modern estate and elder law planning. With rising nursing home and assisted living costs in 2026, many families are surprised by how quickly long-term care expenses can deplete life savings.

Proper planning ensures your assets are protected, your Medicaid eligibility is preserved, and your long-term care needs are financially supported.

Medicaid planning is not just for emergencies—it is a proactive strategy to protect wealth, qualify for benefits, and reduce the burden on loved ones.

Why Medicaid Planning Matters in 2026

Long-term care in Florida continues to increase in cost, and most families cannot afford extended nursing home care without assistance.

In general, individuals have three ways to pay for long-term care:

Personal savings and assets
Long-term care insurance
Medicaid benefits

Because Medicaid is needs-based, strict financial limits apply. Without proper planning, individuals may be forced into a “spend-down,” exhausting assets before qualifying for benefits.

How Medicaid Eligibility Works in Florida

Medicaid is a means-tested government program, which means eligibility depends on:

Income level
Countable assets
Asset transfers within the 5-year “look-back period”

During the Medicaid look-back period, any transfers of assets for less than fair market value may trigger penalties or delays in eligibility.

This is where strategic Medicaid asset protection planning becomes critical.

Florida Medicaid Asset Protection Trusts

One of the most effective legal strategies is the Irrevocable Medicaid Asset Protection Trust.

These trusts:

Remove assets from Medicaid eligibility calculations
Protect wealth from long-term care spend-down requirements
Preserve inheritance for children and heirs
Help families plan ahead for nursing home costs

Once assets are properly transferred into an irrevocable trust, they are no longer considered owned by the applicant for Medicaid purposes.

Important : These trusts must generally be created at least five years before applying for Medicaid due to federal rules.

Key Requirements for Medicaid Asset Protection Trusts

A valid Florida Medicaid planning trust typically includes:

An independent trustee (not the applicant or spouse)
Irrevocable structure (cannot be changed or revoked)
Proper asset transfer and funding of the trust
Compliance with Florida Medicaid rules and federal regulations
Planning well in advance of nursing home care needs

Commonly used trustees include adult children, trusted relatives, or professional fiduciaries.

What Assets Can Be Protected?

Medicaid planning strategies may help protect:

Primary residence (in many cases)
Investment accounts
Savings accounts
Non-exempt real estate
Certain income-producing assets

Proper structuring is critical—incorrect planning can lead to penalties or disqualification.

Common Medicaid Planning Mistakes

Many families make costly errors, including:

Waiting too long to plan
Transferring assets incorrectly
Failing to understand the 5-year look-back rule
Relying only on a will instead of a trust
Not coordinating beneficiary designations

Early planning is the most effective way to avoid these issues.

Why Work With a Florida Elder Law Attorney

Medicaid rules are complex and constantly evolving. In Florida, proper planning requires coordination of:

Elder law
Estate planning
Tax considerations
Asset protection strategies

An experienced Florida elder law attorney can help structure your plan correctly so you qualify for benefits while protecting your estate.

Final Thoughts

Medicaid asset protection is no longer optional planning—it is essential financial protection for aging individuals and families facing long-term care risks.

With the right legal strategy, you can protect your assets, qualify for Medicaid benefits when needed, and preserve your legacy for future generations.

If you are planning ahead for retirement, nursing home care, or Medicaid eligibility in Florida, now is the time to act—not after a health crisis occurs.

At Walser Law Firm , we help Florida families with Medicaid planning, asset protection trusts, and nursing home planning strategies.

Contact Walser Law Firm today to schedule a consultation for Medicaid planning and estate protection in Florida.

Estate Planning for Same-Sex Couples After Obergefell vs. Hodges

Thu, 07 May 2026 16:52:53 GMT

By Thomas Walser, Florida Probate Litigation Attorney

Updated May 2026

One June 26, 2015 the United States Supreme Court issued its opinion in Obergefell vs. Hodges, the name assigned to a series of consolidated cases on same-sex marriage rights. The Court ruled 5-4 in favor of the petitioners, holding that same-sex married couples are entitled to equal protection under the laws, and that their marriages must be recognized nationwide.

Impact of Obergefell for Same-Sex Married Couples

State laws banning same-sex marriage are effectively invalidated. Same-sex spouses will now enjoy all state tax benefits and other spousal benefits that other couples enjoy. (including marriage, divorce, adoption & child custody, separation agreements & QDROS, marital property, survivorship spousal death benefits, inheritance through intestacy, priority rights in guardianship proceedings, contract rights, etc.)

Couples absolutely should still proactively plan. Just because states recognize marriage doesn’t mean couples should not take control of their will and trust planning, and clearly set forth their wishes in enforceable legal documents. All the good reasons to plan apply just as much to same-sex married couples as well as opposite-sex couples:

Obergefell likely represents the last word on same-sex marriage, elevating these relationships to equal statute with other marriages. While same-sex married couples are now entitled to equal protection under the laws of every state, the efficacy of those laws in ensuring dignity in disability and death, and orderly structured distribution of property after death is very limited for all couples. Families should always take control of their planning and leave as little to state law interpretation as possible. That is best done through careful planning with experienced professionals who can intelligently guide the family through the process.

The Benefits of Estate Planning

Tue, 14 Apr 2026 14:48:36 GMT

By Thomas Walser, Florida Estate Planning Attorney

Updated April 2026

While it may not be the first thing someone thinks about when considering end-of-life decisions, it’s extremely important to understand the benefits of estate planning, especially for those with valuable, taxable estates.

Not only can the benefits of estate planning provide you a secure financial position after death, but they can also help significantly during your life, to ensure that your assets are protected properly. Proper estate planning can even provide options to lower or eliminate estate taxes, and ease future generations from a number of financial burdens that coincide with the loss of a loved one. It is never an easy thing to consider, but understanding how and why you should talk to an estate planning attorney is key in correctly handling these decisions in the long run.

The Importance of Estate Planning

The importance of estate planning begins far before death, especially in unprecedented events that may inhibit you from making decisions for yourself. We understand that your estate is a reflection of years of hard work, and planning for the future well ahead of time can ensure that an unwarranted incident doesn’t create a burden for yourself, or for others.

Protecting family wealth establishes a safe, secure way for your assets to maintain their value during and after your lifetime. Financial success certainly comes with its negatives, as lawsuits and other schemes can jeopardize your hard-earned wealth. To avoid these uncertainties, a very common way to start is by creating a trust, so your wealth and assets can be placed into legally protected entities. This also allows you to remove your name from assets, and gives chances for insurance to provide funds for your estate and protect you from these legal challenges.

Revocable and Irrevocable Trusts

Setting up a trust can allow you to transfer assets to beneficiaries, help your estate avoid probate, and help plan for your own needs in the event of an emergency. These actions help you to dispose of wealth in the manner you wish, and this alone can save you and your loved ones from many financial burdens. Assets within these trusts become protected, and can even be used for charitable or philanthropic goals. The two trusts to consider are revocable vs. irrevocable, and both come with a variety of perks to help you.

Revocable Trusts

These trusts can help you avoid probate, but the IRS allows you to maintain control of the assets you place into said trust. You can revoke the entity and take back your assets at any time, remaining in control of what you put in and take out. This allows for leniency and security regarding your own decisions, but again, a number of situations can prevent you from making these decisions, which can be worrisome.

Irrevocable Trusts

Placing assets into an irrevocable trust is permanent. Someone else must become a trustee, and you relinquish ownership in doing so. If your assets are placed in an irrevocable trust, they don’t contribute to your taxable estate, so this is usually important when deciding how to disperse your assets among beneficiaries. If you have something valuable you wish to transfer to a beneficiary, an irrevocable trust can secure that transaction.

How to Start Estate Planning

If you are considering a plan for your estate, your best course is to contact a wealth advisor or an estate planning attorney, to correctly handle the eventualities of your future in a secure and professional way. There are many legal complexities in this process, and seeking advice shouldn’t be something to feel uncomfortable about doing. Professionals in the field are there to guide you, making sure that all decisions are mutually agreed upon.

Walser Law Firm

Our team at Walser Law Firm has been guiding individuals through the estate planning process for over 30 years. We dedicate our time to design plans that meet your unique goals, and help ensure a secure future for you and your loved ones. We understand that years of hard work shouldn’t be open to uncertainties, and we use our many years of expertise to create a plan that is tailored to your needs. If you wish to begin this planning process, or are unsure of any steps along the way, please contact us for any questions or inquiries about the estate planning process.

6 Common Probate issues

Tue, 14 Apr 2026 14:44:40 GMT

1. Arguments Between Family Members and/or Beneficiaries

When a family member passes away it can be a difficult time for those that he or she leaves behind. Not only must they cope with the physical loss of their loved one, but they must also undergo the emotional process of administering their estate. In instances where the decedent’s estate contains significant assets and complex family arrangements, unforeseen tensions and conflicts may arise among the beneficiaries. With proper estate planning in place before death, many familial issues can be proactively addressed.

An estate plan that incorporates a revocable trust and has assets correctly titled into the trust at the time of death, can avoid the probate process altogether and keep the administration out of the court system, saving beneficiaries time, legal fees and court costs. Without proper estate planning, if the decedent died with more than $75,000 of assets, the beneficiaries will be forced to conduct a formal probate administration, which in Florida requires the engagement of an attorney to supervise the process.

In a formal probate administration, the court will appoint a personal representative, aka executor, who will be authorized to do the following:

Act on behalf of the estate
Collect the assets
Handle creditor claims
Make distributions to the ultimate beneficiaries

While family members have preference to serve as personal representative, sometimes it can be beneficial to have an independent professional serve as the personal representative. One example of an independent professional serving as personal representative would be for the attorney to serve. Having the attorney serve in the role of fiduciary can reduce tension between family members by providing communication about the probate process and ensuring all assets are accounted for and handled properly. An attorney will presumably not hold any bias towards particular family members and will maintain a professional demeanor throughout the process, with the sole priority of enforcing the provisions of the Last Will, or in the case there is no Last Will, to distribute the assets according to Florida intestacy statutes.

2. The Person Named as Personal Representative, aka Executor, Not Accepting the Role

When a Last Will and Testament is created, a person should be identified to serve as executor of the estate. In Florida, the role of executor is referred to as personal representative. A personal representative or executor is essentially in charge of:

Collecting all probate assets
Serving notice on potential creditors
Distributing the assets according to decedent’s Will

While most people who are nominated as a potential executor will carry out their role, some will not want to assume the responsibility. If the named executor opts out, the court will have to appoint another person to administer the estate throughout the probate proceedings, which has the potential to create considerable delay in the probate process. The easiest way to proactively mitigate this situation is for the testator to name additional persons that should serve as personal representative, if the first named person chooses not to do so. These subsequently named persons are referred to as contingent nominated personal representatives. It is advisable that a Last Will identify at least two, if not three, possible persons that may serve in the role as the personal representative.

3. Assets in Multiple States

Geographic borders will have a substantial impact on the way assets are distributed after the death of a loved one. If your loved one lived in one state, but also owned real estate in another, you will most likely have to conduct a probate administration in each state.

Real estate is always governed by the laws of the state in which it is located. Some states allow family members to conduct probate administrations without hiring an attorney, while others will require you to engage an attorney in order to open the estate, such as Florida.

A typical example would be a snowbird who travels between Florida and New York and owns real estate in both locations. In order to avoid state death taxes and income taxes, the snowbird is most likely to consider Florida to be his or her domicile and the death certificate will identify a Florida address as the last residence of the decedent. In such a situation the initial probate must be conducted in Florida, which will be considered the domiciliary probate. The Florida proceeding will control all tangible personal property owned by the decedent, such as bank accounts, brokerage accounts, jewelry, and vehicles. The Florida proceedings will also control any real estate located in Florida. If the decedent owned real estate in New York, then a separate probate proceeding must be conducted in that state in order to sell or transfer that piece of property on behalf of the estate. The New York proceeding will be known as the ancillary probate proceeding and it will be filed in the country in which the real estate is located.

Having to conduct multiple probate proceedings in different states can create considerable delays and complications, so having an experienced probate attorney assist with the administrations is always advisable. Fortunately, the Walser Law Firm has attorneys licensed in New York, New Jersey and Florida so our law office can assist with property located in all of these states simultaneously. When one law office is able to handle all of the administrations it will save the beneficiaries time and money.

4. Accounting for Assets on the Estate Inventory

If you have never experienced the probate process, you may be surprised at how tedious the marshaling and accounting of estate assets can be. In Florida, the personal representative is required to submit an inventory of assets to the court within 60 days of the estate being opened, which is the date the “ Letters of Administration ” are issued by the judge. Frequently the decedent will have passed away without a will or any other estate planning and the location and value of the assets held at death will not be known to the beneficiaries. In situations in which the assets are unknown, the personal representative will often have to do some investigation to track down clues as to where assets might be located, such as looking through the decedent’s mail and requesting tax returns from the IRS. The personal representative can submit a rough estimate of assets on the initial inventory filed with the probate court and can amend that inventory as more information is gathered from various financial institutions.

Generally, a personal representative is permitted to give their own estimate as to what they think any particular asset of the estate is worth. In more complicated estates where there are multiple beneficiaries, or tax consequences, it is advisable for the personal representative to obtain professional appraisals of all assets. The values will be reported on the inventory which is filed with the probate court and subsequently served on all beneficiaries.

Each beneficiary has the right to inquire as to how the value of any asset was determined and to request a copy of the appraisals. An independent appraisal is also a way to document any step up in tax basis that was experienced at the date of death. When a person sells an asset, such as a piece of real estate or share of stock, they will be responsible for reporting the sale on their tax return and paying a capital gains tax that may be associated with the transaction. The capital gain is calculated by finding the difference between what the asset was originally purchased for and what the asset eventually sold for. Capital gains are treated differently at death being that upon the death a loved one, any assets that were held in the name of the decedent are automatically reassigned a new tax basis according to the date of death value of the property. This process is referred to as a “step up in basis” and is utilized to avoid significant tax liability that would normally occur if the asset had been sold during the lifetime of the original owner. Since these capital gains taxes can represent significant savings, and in an effort to avoid questions from the IRS, an independent professional appraisal of the date of death values of the property is recommended.

5. Different Intentions Concerning the Decedent’s Residence or Other Real Estate

What will be done with the real estate owned by a decedent is often a point of contention between family members. The easiest way to proactively handle this situation is for the Last Will & Testament to clarify what is to be done with the property.

Assuming the decedent passed away without a Will, the estate will be probated according to Florida intestacy statutes. Intestate beneficiaries will often disagree as to whether they should sell the property and distribute the cash evenly, rent out the property, or keep the property and let a family member live there. These issues will have serious ramifications on how the probate process will proceed, since the sale of real property will most likely require the services of a realtor as well as require orders from the probate court authorizing the sale to a potential purchaser.

In Florida, there is the additional complication of homestead status, which means the real estate is creditor protected and creates restrictions on how the property can be transferred. Homestead property must be handled properly with the probate court in order to successfully clear title.

Therefore, it is important that before entering probate, that the beneficiaries decide whether the real property will be kept or sold. Without an agreement as to how to handle the real estate, probate can be unnecessarily delayed. In cases of disagreement, it is often easiest to sell the real estate and split the proceeds among the beneficiaries.

6. Mistakes Made from Going It Alone

Many families and individuals who are going through the probate process for the first time instinctively assume they can handle the court proceedings themselves. Although some probate attorney fees may be more than you are willing to pay, probate attorneys are experts in this area of law and understand all issues and concerns that may arise.

A common scenario is one in which the family starts the probate process on their own, mistakes are made with the pleadings submitted to the court and the judge refuses to sign the orders requiring the family to subsequently hire an attorney to fix the problem. Hiring an attorney from the start will lessen the time it takes to complete the probate process because the attorney will not be required

If you have questions regarding a loved one’s probate, it is important to seek the advice of an experienced probate attorney. The highly skilled Florida probate attorneys at the Walser Law Firm are happy to assist you with all your probate needs. Call our Florida office at (561) 750-1040 to schedule a consultation today, or fill out our contact form .

What Happens If You Die Without A Will In Florida?

Tue, 14 Apr 2026 14:10:21 GMT

What Happens If You Die Without A Will In Florida?

Dying without a Last Will & Testament will result in your estate passing via intestacy, which simply means that your assets will be allocated to surviving relatives according to the guidelines laid out in Florida intestacy statutes. Every state passes an intestate statute which serves as a default distribution scheme to certain relatives based on how the legislature believes the majority of people would like their assets to pass. For example, most people would want their current spouse and any biological or adopted children to receive a portion of their estate, so those parties almost always have priority under intestate statutes.

What Assets Will Be Included in the Estate?

Any assets that are titled in the sole name of the person that passes away, also referred to as the decedent, will fall into their estate and will be subject to the intestate distribution. This would not include property that is held jointly with other parties such as your spouse, nor does it include assets which have a designated beneficiary, such as many brokerage accounts or IRAs. There are many assets that are typically not included in a decedent’s probate estate, such as the following:

Property titled in the name of a revocable trust
Life insurance proceeds
Funds in a IRA, 401(k), or other retirement account
Securities held in transfer-on-death account
Payable-on-death bank accounts
Property you own with someone else in joint tenancy or tenancy by entirety

At death, these above mentioned assets will pass to any co-owners or to the designated beneficiaries named on the account, and as such are not included as part of the decedent’s estate. Joint ownership and designated beneficiaries have priority above any provisions within estate planning documents, such as a Will or Trust because such documents only control assets that fall into the estate.

Who Gets What?

Intestate succession will depend on which family members are alive at the time of your death. Below is a quick overview of how your assets may pass:

If you have children, but no spouse, your children inherit everything
If you have a spouse, but no children, your spouse inherits everything
If you have a spouse and children from you and that spouse, and no children from outside the marriage, your spouse inherits everything
If you have a spouse and children from you and that spouse, but you also have children from another relationship, your spouse will inherit half of your intestate property and all of your children will equally share the remaining half. Your spouse’s children will not inherit.
If you have parents but no spouse or children, your parents inherit everything
If you have siblings but no spouse, children, or parents, your siblings will inherit everything

Do Adopted Children or Step-Children Inherit via Intestacy?

In order for your children to inherit your assets through intestate succession, Florida must legally recognize them as your children. In regard to the FL intestate statute, adopted children are treated exactly the same as biological children. Children who have been legally adopted will always be entitled to receive an intestate share from the estate of the person who adopted them. One important distinction for estate planning purposes is that if you have step-children, which have not been legally adopted by you, they will not automatically inherit under intestate succession laws. If you desire to have your step children inherit from your estate, it is important that you execute a Last Will & Testament which names them as beneficiaries.

Sometimes determining who is qualified to inherit as a child of a decedent can be complicated. For example, if you have a posthumous child, a child conceived by you but born after your death, that child will typically have standing to inherit. Another common scenario includes non-marital children, in which the decedent was not married to the mother of the child at the time of their birth. The Florida Probate Code requires that one of the three following elements be met in order to substantiate that a certain child should have standing to inherit via intestacy from the father’s estate, which include:

1. The natural parents participated in a marriage ceremony before or after the birth of the person born out of wedlock, even though the attempted marriage is void.

2. The paternity of the father is established by an adjudication before or after the death of the father.

3. The paternity of the father is acknowledged in writing by the father.

Will One Child Receive More Than the Other?

Florida follows a method of distributing a decedent’s estate known as “per stirpes.” The basic concept is that each descendant on the same generational level will inherit an equal share of the decedent’s estate, and any descendants on a younger generational level that have predeceased parents, will inherit their parent’s intended share. For example, assume that the decedent had no spouse, but had two children, a son, Alex, and a daughter, Betty. Alex had one child, Chuck, and Betty had two children, Damien and Ellie. Upon the decedent’s death:

Alex and Betty are both alive. Therefore, they split the estate equally and both receive 50%.

o Alex-50%; Betty-50%

If Betty dies before the decedent, then her children will receive her portion of the estate. Alex will still receive 50%, while Betty’s children will each receive 25%.

o Alex-50%; Damien-25%; Ellie-25%

If both Alex and Betty died before the decedent, then Chuck would get Alex’s’ 50% share and Betty’s children would get her 50% share.

o Chuck-50%; Damien 25%; Ellie 25%

If you have questions regarding the intestacy laws pertaining to a loved one’s estate, it is important to seek the advice of an experienced probate attorney. The highly skilled Florida probate attorneys at Walser Law Firm can assist you with all your probate needs.

Call our Florida office at (561) 750-1 04 0 to schedule a consultation today, or fill out our contact form.

Estate Planning Checklist

Wed, 17 Dec 2025 19:54:58 GMT

Estate Planning Checklist: A Florida Attorney's Guide to Protecting Your Family and Assets

Estate planning is the process of organizing your assets, legal documents, and healthcare decisions so your wishes are carried out if you become incapacitated or pass away, while also protecting your family from unnecessary legal and financial complications. This checklist walks through the key steps involved, including creating wills and trusts, choosing executors and guardians, updating beneficiary designations, preparing powers of attorney and healthcare directives, and planning for probate, taxes, long-term care, and special family circumstances.

I f you own a home or other assets in Florida, having an estate plan is not optional—it is essential. After more than 40 years practicing probate and estate planning , I’ve seen firsthand what happens when families plan properly—and what happens when they don’t.

As an attorney, former CPA, and holder of a Master’s in Estate Planning, I approach estate planning from both a legal and financial perspective. This checklist is designed to help you understand what an effective estate plan should include and why each step matters.

1. Create or Update Your Will

A will allows you to:

Name who inherits your assets
Appoint a personal representative
Name guardians for minor children

However, a common misconception is that a will avoids probate. It does not. If you have to read the will to determine who receives an asset, that asset must go through probate to be legally transferred.

Real-World Insight

I often meet families who believe bringing a will to the bank is enough. It isn’t. Only the probate court can accept a will and issue Letters of Administration , which authorize asset transfers.

2. Consid er a Revocable Living Trust

One of the most effective estate planning tools is a revocable trust. When properly funded, a trust:

Avoids probate
Reduces delays and court costs
Provides privacy

Case Example

Many Florida retirees own multiple properties or investment accounts. Without a trust, heirs may face formal or even ancillary probate proceedings. A properly funded trust can eliminate those complications entirely.

3. Review How Your Assets Are Titled

Asset titling determines whether probate is required:

Individually owned assets typically require probate
Joint ownership with rights of survivorship avoids probate
Trust-owned assets bypass probate

Professional Tip

I’ve handled countless cases where estate plans failed simply because assets were never retitled into the trust. An estate plan is only effective if your assets are aligned with it.

4. Add Beneficiaries to Financial Accounts

Bank accounts, retirement accounts, and brokerage accounts can often pass directly to heirs by naming beneficiaries.

This step:

Avoids probate
Speeds up distribution
Reduces legal costs

Common Mistake

Failing to update beneficiary designations after a divorce or remarriage is one of the most common—and costly—errors I see in the administration of estates after death.

5. Plan for Real Estate Transfers

Real estate often creates the biggest probate delays.

Options include:

Transferring property in a revocable trust
Adding heirs as remaindermen through a quitclaim deed or ladybird deed

Real-Life Scenario

If real estate does not have a co-owner with rights of survivorship or it is not held in name of trust, probate is required before ownership can transfer—even if there is a will.

6. Prepare for Blended Families and Second Marriages

Second marriages and stepchildren often lead to disputes if planning is unclear.

An effective estate plan should:

Clearly define who receives what
Address how property will be sold or retained
Prevent conflicts over personal property like jewelry or family heirlooms
Establish who makes medical and long-term care decisions.

Experience Matters

I’ve handled many contested estates where disagreements among second spouse, children, or stepchildren led to lengthy and expensive litigation—often entirely avoidable with proper planning.

7. Plan for Incapacity, Not Just Death

Estate planning is not just about what happens when you die. It should also address incapacity.

Your plan should include:

Durable powers of attorney
Health care directives

These documents allow trusted individuals to manage finances and medical decisions if you become ill or incapacitated.

8. Understand Probate Timelines and Costs

Probate is not quick. In Florida, it typically takes 6–12 months , and longer if disputes arise.

Understanding this reality is critical when deciding whether to:

Rely solely on a will
Use trusts and beneficiary designations to minimize probate

9. Review and Update Your Plan Regularly

Life changes—your estate plan should too.

Update your plan after:

Marriage or divorce
Birth of children or grandchildren
Buying or selling real estate
Changes in tax or probate laws
Increase or decrease in wealth

10. Work With an Experienced Estate Planning Attorney

Estate planning is not a one-size-fits-all process. After more than four decades handling formal administration, summary administration, ancillary probate, and contested estates , I’ve seen how small planning mistakes can create major problems for families.

Whether you:

Have no estate plan
Have outdated documents
Recently lost a loved one

Working with an experienced estate planning and probate attorney can save your family time, money, and emotional stress.

Final Thoughts

An effective estate plan protects your family, preserves your assets, and minimizes probate delays and costs. The best time to plan is before illness or death, when you can make thoughtful, informed decisions.

If you are a Florida retiree who owns a home, other real estate, or has saved money for retirement, I encourage you to schedule a review of your current estate plan—or create one if none exists. Proper planning today can prevent unnecessary probate challenges tomorrow.

What Are the Types of Probate?

Mon, 15 Dec 2025 22:12:52 GMT

What Are the Types of Probate? A Florida Attorney Explains

When a loved one passes away, one of the first questions families ask is “What type of probate is required?” The answer depends on the assets involved, how they are titled, whether there is a will, and whether the heirs agree.

As an attorney with more than 40 years of probate experience, a former CPA, and a professional holding a Master’s in Estate Planning, I have handled every type of probate case in Florida—from straightforward estates to highly contested matters involving blended families, real estate, and multiple jurisdictions. Below is a clear explanation of the main types of probate and when each applies.

Formal Administration

Formal administration is the most common type of probate in Florida and is required when:

The estate value exceeds Florida’s summary administration threshold, or
There are disputes among heirs or creditors, or
Complex assets such as real estate or business interests are involved\

In formal administration, the probate court:

Validates the will
Appoints a personal representative
Issues Letters of Administration , which authorize the representative to collect, manage, and distribute assets

Real-Life Example

I frequently see heirs bring a will to a bank expecting access to accounts. The bank refuses—not because the will is invalid, but because only the probate court can issue Letters of Administration. Without those letters, financial institutions cannot legally release assets.

Formal administration typically takes 6 to 12 months, and longer if disputes arise.

Summary Administration

Summary Administration is a shorter, simplified probate process available when:

The estate qualifies under Florida law, and
The estate is relatively straightforward with minimal disputes

While summary administration can save time and money, it is not appropriate for every estate. Creditors, real estate ownership, and asset titling must be carefully reviewed before choosing this option.

Professional Insight

Many people assume summary administration is “easy probate.” In practice, mistakes here can cause significant delays or even require reopening the estate. My background as both a CPA and estate planning attorney allows me to spot financial and legal issues before they become costly problems.

Ancillary Probate

Ancillary probate is required when a Florida resident owns property outside of Florida, or when a non-Florida resident owns real estate in Florida.

This type of probate works alongside the primary probate case in another state and focuses solely on the out-of-state property.

Common Scenario

I often handle ancillary probate cases involving Florida retirees who own vacation homes or investment properties in other states. Without proper planning, heirs are forced into multiple probate proceedings, increasing time, legal fees, and stress.

Contested Probate

A probate becomes contested when heirs or interested parties disagree about:

The validity of the will
Who should serve as personal representative
How assets should be divided

Contested probates are common in:

Second marriages
Blended families with stepchildren
Situations where personal property, jewelry, or real estate distributions are disputed

Case Insight

I’ve seen families torn apart when children cannot agree on paying funeral expenses, dividing personal property, or deciding whether to sell the family home. These disputes can turn a routine probate into a lengthy court battle without experienced legal guidance.

Why the Type of Probate Matters

Choosing—or being forced into—the wrong type of probate can:

Delay asset distribution
Increase legal and court costs
Create unnecessary family conflict

This is why proper planning is critical. If you have to read the will to determine who receives an asset, probate is required to transfer that asset legally. Understanding this concept helps families avoid surprises after a loved one passes.

How to Avoid or Simplify Probate

In my practice, I regularly help clients reduce or eliminate probate through proactive estate planning :

Revocable trusts that hold assets outside of probate
Beneficiary designations on bank and brokerage accounts
Quitclaim deeds adding heirs as remaindermen for real estate

These strategies can dramatically reduce delays, expenses, and emotional stress for surviving family members.

Who Should Be Paying Attention to This?

If you are a Florida retiree who owns a home, vacation property, or investment real estate, probate planning is essential. Many people mistakenly believe having a will alone avoids probate—it does not.

Whether you need to:

Update an existing estate plan
Create a plan for the first time
Handle probate after a loved one’s passing

Working with an experienced probate attorney ensures your family is protected and your wishes are carried out properly.

Final Thoughts

After more than four decades of handling every type of probate case in Florida, I can confidently say this: the right planning today can spare your family months—or years—of legal frustration tomorrow.

If you would like to review or update your estate plan, or if your family needs guidance through the probate process, I encourage you to contact my office . Proper planning brings peace of mind—both for you and for those you love.

Florida Estate Law: What To Know About Estate Planning in the Sunshine State

Sun, 07 Dec 2025 21:05:17 GMT

For those unfamiliar with Florida estate law, there can be the assumption that “estate planning” is reserved for those who own a large gated property. Legally, however, an estate plan is nothing more than a set of legal documents that outline your wishes for the distribution of your assets after your death.

Estate plans are critical for anyone who wishes to control and protect their assets when they’re no longer able to do so. Working with an experienced estate planning attorney to prepare a will, trust, and other legal documents can ensure that your estate plan is tailored to your individual needs and goals.

With that in mind, let’s take a closer look at what an estate plan entails, the benefits of estate planning in Florida, and how partnering with a law firm well-versed in the intricacies of Florida estate tax laws will make sure that your wishes are met.

Florida Estate Tax Laws and Estate Planning Explained

Florida estate tax laws are some of the most liberal in the country, with many folks moving to the Sunshine State to take advantage of the friendly estate laws. As we mentioned above, an estate plan is simply the legal documents you’ll need to make sure all of your assets are distributed per your wishes after your death.

What is included in an estate plan

Will

The most common part of an estate plan is the will, which in Florida is known as the Last Will and Testament. This document will legally declare such information as who the executor of the estate will be, who the beneficiaries are, how the assets will be distributed, and the names of guardians in the case of minor children.

Trust

A trust is a fiduciary arrangement that allows for a third party (trustee) to hold property and other assets for the beneficiary both during their lifetime and after. Most trusts are revocable, meaning they can be modified at any time by the person establishing the trust (for more on how to dissolve a revocable trust click here ). Florida trust laws require trusts to be drafted by a licensed attorney, and doing so will help you and your beneficiaries avoid any expensive legal issues down the road.

Power of attorney

A power of attorney gives legal authority to a trusted individual who can make decisions and act on your behalf if and when you are no longer physically able to do so. Depending on the language of the legal document, this could entail legal, financial, and medical decision-making powers.

Other documents

Every individual situation is different, and it’s possible you’ll need an estate planning attorney to draw up other legal documents to protect your assets, such as Florida’s homestead exemption, spousal property ownership splits, and healthcare directives.

Benefits of Estate Planning in Florida

Considering the liberality of Florida estate law, it’s not difficult to see the many benefits of having an estate plan. Not only will you be able to make important decisions about your future and protect your hard-earned assets during your own lifetime, but it will also allow you to provide for your dependents after your death. In the end, making an estate plan will save you time, money, and excessive stress for both you and your loved ones.

Hire An Experienced Estate Planning Attorney

There are inevitably going to be estate planning costs when you hire a seasoned lawyer who’s an expert in Florida estate tax laws and Florida trust laws. But the benefits and security offered— specifically, tailoring your documents to your needs and ensuring that the estate plan is properly executed—will be well worth the investment in the long run.

Estate planning is an important process that everyone should consider, regardless of age or wealth. By working with an experienced estate planning attorney, you can ensure that your wishes are carried out and your loved ones are protected. The Walser Law Firm is dedicated to helping clients throughout Florida create customized estate plans that meet their needs and goals. Contact us now !

What Is Probate?

Sun, 07 Dec 2025 20:24:14 GMT

Expert Insights From an Attorney With 40+ Years of Experience

If you’re a Florida homeowner or retiree, understanding probate is essential—whether you’re planning for the future or handling the estate of a loved one. With over 40 years of experience in probate and estate planning, a background as a CPA, and a Master’s in Estate Planning, I’ve guided families through every type of probate case: from simple formal administration to complex contested estates involving multiple heirs and properties. Here’s what you need to know.

Probate Explained in Plain Language

Probate is the legal process that determines who inherits a deceased person’s assets and ensures those assets are legally transferred to the rightful heirs.

A helpful analogy I use with clients: if you have to read the will to figure out who receives an asset, that asset must go through probate. Probate gives the legal authority to transfer assets like bank accounts, investments, and real estate to the heirs named in the will. Without it, the transfer cannot happen, no matter what the document says.

Common Misunderstandings About Probate

Two misconceptions I see all the time:

• “The bank will accept the will.”

Banks and financial institutions cannot act on a will alone. They require Letters of Administration from the probate court. These letters authorize the personal representative to manage, collect, and distribute the decedent’s assets legally.

• “Probate is quick and simple.”

In reality, probate involves multiple legal steps, court filings, notifications to heirs and creditors, and administrative tasks. In Florida, it generally takes 6–12 months , and longer if there are disputes, multiple heirs, or comp lex assets.

Real-Life Examples: Why Probate Matters

I often see heirs try to take a will directly to a bank, expecting access to accounts. The bank refuses— only the probate court can validate the will and issue the necessary authority.

The same applies to real estate. If a property doesn’t have a co-owner with rights of survivorship, probate is required before the deed can legally transfer to the heir. Without probate, the rightful heir cannot claim ownership, even if they are named in the will.

Challenges That Arise in Probate

Probate can become complicated when family members disagree :

• Children may argue about paying final expenses or dividing personal property like jewelry.

• Second marriages and blended families can introduce disagreements about selling or distributing assets.

• Contested estates may involve disputes over the will or asset ownership.

With decades of experience in formal administration, summary administration, ancillary probate, and contested estates, I’ve helped families navigate these challenges efficiently and fairly.

How to Minimize Probate Problems

The best way to reduce delays, costs, and stress is proactive planning:

• Revocable Trusts: Transferring assets into a trust can bypass probate entirely.

• Beneficiary Designations: Adding heirs to bank and brokerage accounts ensures a smooth transition.

• Real Estate Planning : Executing a quitclaim deed that names heirs as remaindermen allows property to transfer without court involvement.

Proper planning ensures your family avoids unnecessary stress and expenses after your passing.

Who Should Care About Probate?

If you’re a Florida retiree with homes, vacation properties, or other real estate, probate is likely relevant to you. Many people underestimate how probate works and assume their heirs can simply inherit assets without court involvement.

Even if you already have a will, probate may still be required. If you don’t have an estate plan , now is the time to create one. For families who recently lost a loved one without proper documents, contacting a probate attorney is essential to guide the family with clarity, compassion, and legal precision.

Take Action Today

Probate doesn’t have to be overwhelming. With the right guidance, your estate can be managed smoothly, efficiently, and according to your wishes.

• Update or create an estate plan to protect your assets.

• Consider trusts and proper titling to reduce probate costs.

• Consult a probate attorney if a loved one passed without an estate plan.

With proper planning, you can ensure your family is protected and your legacy is preserved.

How Long Does An Executor Have to Settle An Estate In Florida?

Fri, 30 Sep 2022 05:18:00 GMT

To answer the question, “how long does an executor have to settle an estate in Florida?” an individual should be aware of a number of facets of the state’s probate process. An executor’s time to settle an estate varies considerably depending on assets, and there are multiple ways of achieving this process. To better understand the probate laws in Florida, let’s review the Florida executor requirements and essential deadlines a person should be familiar with when settling a loved one’s estate.

How to Become Executor of Estate in Florida

The legal requirements for becoming an executor in Florida are relatively straightforward. To meet the Florida executor requirements, an estate executor, known as a personal representative, must be at least 18 years of age, have no felony convictions, and be considered mentally and physically capable of carrying out their responsibilities. Other requirements maintain that individuals can only act as personal representatives if they’re related to the estate holder by either blood, marriage, or adoption.

To become an executor in Florida, you must file an Application for Administration for an intestate estate. Florida law also requires an applicant to seek a qualified attorney who can complete and submit the application. This application is then submitted to the Probate Division for the Circuit Court in the proper county.

Executor Fees

Florida executor fees are based on the value of the estate. If the estate value is $1 million or less, your fee is 3% of the estate assets. If the estate value is between $1 million and $5 million, your fee is 2.5% of the estate assets. If the estate value is between $5 million and $10 million, your Florida executor fees are 2% of the estate assets.

Timeline of the Florida Probate Process

The Florida Probate Process timeline differs by the type of probate filed within the state. There are two main types in Florida: a formal probate administration and an informal (or summary) probate administration. There is also a disposition without administration, but these are available in very few circumstances.

To more easily break it down, here is a simple list of steps and events that one should undergo directly after the estate owner’s death:

Walser Law Firm

Due to the complexity of the Florida probate process and Florida executor requirements, it is highly advised to hire an estate attorney to guide you through every step of the process. Walser Law Firm has been guiding Florida residents through probate for over 30 years. We cover everything from estate planning, elder law, probate administration, and trust administration.

If you need an experienced and reputable elder law attorney, contact us today to learn more about our services or schedule a consultation.

What You Should Know About Medicaid Planning

Thu, 04 Aug 2022 13:08:00 GMT

Due to the complexity of the Medicaid application and eligibility process, it can be quite a challenge to get started on your Medicaid planning . Since these programs differ greatly between states, the body of rules, regulations, and requirements that govern them change often. For this reason, numerous Medicaid planning services exist to help individuals with various complications and financial circumstances that arise during the application process.

To help you better navigate this convoluted domain, we’re sharing some basic knowledge about Medicaid planning to explain why and when an individual might need these services.

What Are Medicaid Planning Services ?

Medicaid planning refers to any assistance provided to a potential Medicaid applicant in preparation for their Medicaid application. This can be as simple as assistance with the collection and preparation of documents, or as complicated as a complete restructuring of one’s financial assets. While everyone’s situation and assets are entirely different, some primary reasons why an individual would consider using Medicaid planning services include:

When Does An Individual Need Medicaid Planning Assistance ?

In many states, the most pertinent Medicaid eligibility factor is the value of one’s countable assets, with the limit being approximately $2,000 for a single applicant. If an individual has less than $2,000 in countable assets, Medicaid planning assistance may not be needed at all. Further, if an applicant has countable assets between $2,000 and $15,000 (or $30,000 if married), they can probably avoid using a Medicaid planning advisor, and instead look into self-planning.

Various family situations can also impact the need for a Medicaid advisor to help with your assets. These can include situations like:

The Cost of Medicaid Planning Services

Those looking to get started with Medicaid planning assistance can expect to see fees ranging from $3,000-$15,000, depending on the state and other factors. This is typically related to the amount of income and assets an individual has, as well as other complicating factors like marital status, home ownership, life insurance, veteran benefits, etc. Another aspect to take into consideration is what type of service provider you’re using for your Medicaid advisor , be it an elder law attorney, eldercare financial planner, insurance agent, or other providers, as this can affect the cost.

The Medicaid Planning Process

Most Medicaid planning assistance providers will begin with a free consultation to go over your assets, health status, family situation, and other facets that will go into your application and eligibility determination. They will establish the likelihood of success, and examine all of your information to determine whether to accept you as a client, as well as generate a cost estimate.

As an elder law attorney in Florida, Walser Law Firm has been assisting Florida seniors with life and estate planning for more than 30 years, with a team of lawyers who can help you plan for your future health and life needs. Contact us today to learn more about our practices , or to schedule a consultation for your Medicaid planning needs.

Second Marriage Financial Advice

Thu, 21 Jul 2022 08:06:00 GMT

Matrimony is always a cause for celebration, but for those who are entering their second marriage, financial advice for your estate planning can help you avoid a mess of problems later on. Individuals who remarry following a separation often have children and other dependents who are eligible to receive benefits and assets. With proper estate planning, you can itemize assets and assign them to the correct beneficiaries, who will receive them upon your death. This can help save your family from the arduous and emotionally draining task of dividing assets in the absence of a will, or estate.

While a second marriage can feel like a fresh start, it’s important to understand how joining your life with another, while also planning for your biological children, can impact your overall financial plan for dependents from your first marriage. Since this scenario is experienced quite commonly, let’s take a look at the complexities of estate planning for second marriages.

Key Considerations For Estate Planning and Second Marriages

There are multiple aspects to consider when estate planning for a second marriage, and you and your new spouse should have a very distinct and clear understanding of both financial sides before starting the planning process. Some key things to consider when evaluating you and your spouse’s assets include:

By considering these questions and thoroughly covering all areas of your finances, both you and your spouse can gain an insight into what needs planning, what doesn’t, and what the best course of action to take will be. These considerations can also help determine whether or not you both wish to sign a prenuptial agreement to protect individual assets. These are often advised for second marriages, especially when certain assets may already be set aside for beneficiaries in a will or living trust.

What is Fair in a Second Marriage and Estate Planning?

In Florida, state law has provisions designed to protect a surviving spouse or second spouse, which override the terms of a person’s estate planning documents (wills, trusts). If you are in a second marriage and wish to protect your assets, children’s inheritance, or any other aspects of an estate, these laws must be addressed in your new second marriage financial planning documents.

How Does the Estate Work in a Second Marriage?

In the state of Florida, the Elective Share law dictates that a surviving spouse is entitled to at least 30% of a deceased spouse’s estate. This can mean anything from property owned individually by the deceased spouse, a revocable trust, or any share of property owned jointly with another person. Under the Elective Share law, the surviving spouse can elect to claim his or her right to this share. To maneuver around this state law, many turn to a premarital agreement. The purpose of this document is for you and your new spouse to waive your rights to an elective share, and other rights created by marriage. However, you can choose to waive some of your rights, which often requires the need of an estate planning service or advisor.

Tips For Estate Planning and Second Marriages

Consider speaking with a professional estate law advisor to cover all details regarding both spouses’ estates. From beneficiary designations, to bank accounts, retirement accounts, property, and other assets, an advisor can create a clear path for you and your spouse while also indicating any gaps in your second marriage financial planning portfolio.

Trusts can also be incredibly beneficial to both sides of a second marriage. Marital trusts, which only come into effect when a spouse dies, can make a huge difference in assuring that all assets are designated properly to both sides, while living trusts can benefit an individual and their rights as well.

Are you in need of a second marriage financial planning advisor? When you work with a Florida estate planning attorney from Walser Law Firm , you work with an expert who understands that your estate is a reflection of years of hard work, careful planning, and good decisions. Contact us today for any questions or comments regarding our practices , or to schedule a consultation.

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What Are Letters of Administration?

Thu, 23 Jun 2022 03:54:00 GMT

When someone dies and does not leave a will, a letter of administration (or letters testamentary) is used to legally permit a person with the power to become administrator of the deceased’s estate. When this happens, the chosen individual (who is usually a close family member or friend), takes on the responsibility of sorting out all the money, property and assets left behind by the decedent. Still, many probate laws vary between states, and the means for receiving a letter of administration can be a lot to handle, especially in a time of loss. Here’s a closer look at the process, requirements, and legal purpose of letters of administration to help with clarification.

Grant of Letters of Administration

A grant of letters of administration is an official court document that proves an individual has the authority and is responsible enough to handle a decedent’s estate. It grants the individual the right to become administrator of the estate, which gives them various permissions such as:

A grant of letters of administration differs from a probate letter, or grant of probate, in that in the latter instance, the deceased individual has provided a will. However, a letter of testamentary may still be required in some cases, such as if the will is invalid — if no executors are named in the will — or if the executor named in the will is unable to carry out their responsibilities.

An administrator of an estate also slightly differs from an executor. Both roles are meant to distribute assets and property, but in the case of administrators, intestacy laws decide what is given to beneficiaries.

Who Can Be an Administrator of an Estate?

When a deceased individual does not provide a will, the role of administrator will usually go to the closest family member, whether it’s a next-of-kin, spouse, or other significant relatives. The standard procedure generally goes from the spouse (if the decedent was married or in a civil partnership) → children → parents → siblings → other relatives (aunts, uncles, cousins, grandparents).

Once an individual has been to handle the estate, they have every right to hire a professional to help them in various aspects of the probate and administrative processes. Estate administration services can help in situations such as:

How to Get Letters of Administration

In order to receive a grant of letters of administration, an individual must retain an attorney in order to submit an application to the probate registry. Individuals may not file an application on their own.

For those considering a service, some things to take into consideration when speaking to your probate solicitor include:

Walser Law Firm

If you’re in need of an estate administration service to help you receive a grant of letters of administration, contact Walser Law Firm to get started. Our Florida probate law firm has been providing trust and estate legal services to the Palm Beach County community for more than 30 years. Explore our detailed and professional estate planning services today to learn more.

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What Are Estate Taxes?

Thu, 12 May 2022 13:52:00 GMT

You might think it a strange practice to tax an individual’s right to distribute their own property after passing, but estate taxes constitute an important part of the process, and it’s something you should absolutely understand if only to ensure the right amount of tax is being levied.

Estate taxes are one of the oldest forms of taxation on the books. But, you might not be aware of them if you haven’t dealt with a situation where this sort of tax applies. In a process that can already prove complex or lengthy, knowing the specifics of estate taxes, including what they are, who’s responsible for paying them, and the difference between estate taxes and inheritance taxes, is paramount.

Below, we’ll take a more granular look at the estate taxes and their greater role in the distribution process of an estate.

What Are Estate Taxes?

Estate taxes are a tax levied on an individual’s assets after their death. This is a federal tax, and only applies to estates of a certain size ($12.06 million or more in 2022; up from $11.7 million in 2021). For married couples, that amount is doubled.

Because the amount is so high, the estates of most people will not be liable to a federal estate tax upon death. And while some states have their own estate taxes, they too are only levied on large estates and do not impact a majority of Americans.

Estate Tax Rates

In instances where estate taxes do apply, rates vary based on the total taxable amount. This amount is calculated as the total assets an individual possesses above the $12.06 million threshold. The more money a person has above that amount, the more money the estate tax will apply to—and the higher estate tax rates they’ll pay.

The lowest estate tax rate is 18% for estates that are $0 to $10,000 above the threshold. The highest is a 40% tax rate for estates that are $1,000,001+ above the threshold, plus a base rate payment of $345,800. If you are subject to estate tax, an estate attorney will be able to let you know what your exact rate is and whether you will also owe a base rate payment.

Who Pays Estate Taxes?

As covered in the “what are estate taxes?” section above, only the wealthiest Americans pay estate taxes. In instances where there is a surviving spouse, the estate will be fully transferred to them without any estate taxes levied. When the spouse dies is when estate taxes will be taken out, even if the estate is then transferred to his or her children.

Estate vs. Inheritance Tax

Estate tax and inheritance tax are two terms that often get confused, but there is a notable difference between them.

While estate tax is a percentage of wealth removed from a deceased person’s estate, an inheritance tax is an amount that an individual owes for inheriting someone else’s wealth. Similar to with estate taxes, inheritance taxes do not apply to surviving spouses. They may not apply to children either, depending on the state.

There is no federal inheritance tax. Likewise, only six states in total have an inheritance tax, and only one (Maryland) has both an estate tax and an inheritance tax.

Proposed Changes to Estate Tax Laws

In recent years, there have been a number of proposed changes to the federal estate tax, though it is unclear at this point whether any of these proposals will ever become law.

One proposed change is called the “For the 99.5% Act,” which, among other suggested changes, would lower the estate tax exemption from its current amount of $12.06 million to just $3.5 million. Another proposal, the “Sensible Taxation and Equity Promotion Act,” or STEP, would not lower the exemption amount but would make some changes to how various estate planning techniques play out in relation to the tax.

Neither of these proposals have been enacted, so current estate tax laws still apply.

Want to Know More?

Estate planning and taxes are complicated subjects with a lot of nuance to them. For more information, including a consultation based on your personal estate, please contact our office today to speak to a qualified estate attorney.

The post What Are Estate Taxes? appeared first on Walser Law Firm .

What is Trust Administration?

Fri, 29 Apr 2022 04:10:00 GMT

Individuals looking to begin the process of estate and trust administration commonly find themselves asking a few questions: what is trust administration? What does trust administration do? And, why is it a vital aspect of any proper estate plan? These are all excellent questions, and we’ll touch on these subjects, and more. To ensure that you’re taking all of the necessary steps when designating your assets, here’s what you should know about trust administrations, and the value they provide for you and your loved ones.

What Are Trust Administration Services?

The trust administration definition typically refers to the management of an estate prior to an eventual transfer of a property held in trust. So, what does that mean? Essentially, trust administration services ensure that all property designated by the creator of a trust goes to the proper beneficiaries, which is determined in a trust agreement.

Under a trust administration, the creator of the trust (commonly referred to as the “trustor” or “settlor”) determines how his or her assets are to be distributed at the time of their death. The trust also specifies a trustee, which is often a family member or close friend (can also be a lawyer), who will carry out the wishes of the trustor. The trustee is the individual who assumes a multitude of responsibilities following the trustor’s death, some of which can include, but are not limited to:

Advantages and Disadvantages of a Trust Administration

When compared with the standard, court-supervised probate process, a trust administration is a much more private, cost-effective, and efficient method for distributing assets. With a trust administration, you have a greater level of privacy as there is no court supervision throughout the process, and trust documents are not available to the general public. Still, a trust administration can sometimes bring on its own challenges, and often requires detailed correspondence with an estate law attorney or financial advisor.

One of the more prominent disadvantages of a trust administration is the lack of court supervision for certain discrepancies, often between beneficiaries. Managing these situations often requires extensive time and effort to resolve.

Trust Administration Fees

In order to properly analyze trust administration fees, a person must already have a clear understanding of how extensive their estate is, as well as the amount of beneficiaries, and a number of other factors including taxes, insurances, 401k’s and other financial accounts. Fortunately, your estate law attorney will go through the detailed process with you, letting you know throughout every step what you should be expecting to pay.

Walser Law Firm – Elder Law and Probate Attorneys

For more than 30 years, the team at Walser Law Firm has provided South Florida residents with the gold standard of elder law, probate, and estate planning. When it comes to trust administrations , we will walk you through all of the various types of options available, as well as assist you in setting forth all legal preferences for your estate within your will.

Our experienced Palm Beach probate attorney and trust administration lawyers handle every case with compassionate insight and unparalleled legal guidance. We understand that your trust is your legacy, and we take every step to ensure benefits are distributed correctly. For more information regarding our services, contact us today.

What is a Special Needs Trust?

Fri, 15 Apr 2022 04:12:00 GMT

What is a special needs trust? This is a common type of trust with a very important purpose, and it’s one that you’ll want to understand fully if you have a loved one who would benefit from this level of support.

Below, we’ll discuss in further detail what special needs trusts are, how they’re different from other types of trusts, as well as the purpose and benefits of setting one up.

What is a Special Needs Trust?

A special needs trust (sometimes referred to as a supplemental needs trust) is a legal arrangement outlined in a will that provides designated money or property to a loved one with a disability. It also designates a trustee, which is a person or entity who is responsible for overseeing the care of the recipient of the trust and managing their assets.

The biggest benefit of a special needs trust is that it provides supplemental support without interfering with an individual’s eligibility for public assistance programs like Supplemental Security Income (SSI), Medicaid, or Medicare—all of which have strict income requirements. Instead, an individual who is chronically ill or physically or mentally disabled can redeem both the benefits of the public assistance programs and the assets of the trust, which can make a big difference in their overall quality of life.

Understanding the Purpose of Special Needs Trust Provisions

There are three primary functions of a special needs trust:

This legal arrangement benefits the person who establishes the trust as well, ensuring that their loved one will be cared and provided for even when they are not able to take a direct role. In this way, a special needs trust is one of the most beneficial trust arrangements for people with disabilities and their families, and can help provide for additional life-enhancing services, including therapies, medical assistance devices, care facilities, transportation costs, and anything else needed to sustain an individual’s standard of living.

How Does a Special Needs Trust Work?

A special needs trust is set up during the will establishment process with the help of a specialized attorney . During this process, the party creating the trust will work with their attorney to determine how much supplemental income is needed and how much they can provide. Ideally, this will be enough to cover any care and living expenses that are not already covered by public assistance programs, though there are certain limitations to what the funds can be used for, the specifics of which an attorney will help parties navigate.

Should you not wish to employ the services of a lawyer, an option to set up a stand-alone special needs trust is also available. There are many online resources that will assist you in creating a special needs trust document and including all the relevant information necessary. However, families or individuals seeking specialized, tailored trust services should always rely on a lawyer for assistance.

In laying out the terms of the trust, the establishing party will also designate a trustee. This person or entity will play a crucial role in trust oversight and disbursement, as well as care decisions.

Notably, this type of trust doesn’t just ensure a disabled individual’s care for the long-term—it also helps protect their assets from creditors or legal challenges. Any funds disbursed through the trust are not liable for seizure, just as they do not count toward income caps for Medicare, SSI, and other federal programs.

Set Up a Special Needs Trust for a Dependent Loved One

Our team at Walser Law Firm has more than thirty years of experience helping families set up supplemental needs trusts, and can help you take action to protect your loved one both now and in the years to come.

Please contact us today to learn more about our trust services and make sure that discretionary funds are set aside and available for your family member’s care.

The post What is a Special Needs Trust? appeared first on Walser Law Firm .

Financial Planning for Widows

Wed, 23 Feb 2022 10:36:00 GMT

Ensuring that your finances are in check after a loss is understandably difficult, but fortunately, financial planning for widows and widowers is a relatively straight forward process that can save plenty of time and money in the long run. Since making adjustments in these unfortunate circumstances will always come with a lot of questions, this guide will serve as a checklist for things you should consider, and routes you should take for your fiscal future.

Estate Planning For Widows and Widowers

It’s often a challenge to pinpoint exactly where to start when moving forward from a loss of a spouse or loved one. However, these tips are sure to inform anyone in these situations with the tools and guidance they need to safely and effectively handle all financial and estate planning for widows and widowers, specifically:

Asset Planning For Widows and Widowers

When you’re inheriting financial assets from your spouse, it’s important to know how each one plays a role in your new estate situation. Some assets to uniquely consider regarding estate planning for widows and widowers include:

Walser Law Firm

If you’re a widow or a widower, looking for a reliable estate planner can be a difficult task. At Walser Law Firm , we’re here to guide you through every step of arranging for and protecting your assets, with more than three decade’s worth of experience providing expert elder law, probate services, and estate planning for widows and widowers in Florida.

We know the ins and outs of surviving spouse rights in Florida, with a lasting commitment to ensuring that our clients can enjoy their lives without worrying about the future. Contact us today for more information regarding our financial planning for widows and widowers, or any of our other services.

The post Financial Planning for Widows appeared first on Walser Law Firm .

Probate vs Non Probate Assets

Mon, 21 Feb 2022 07:30:00 GMT

When planning out your estate, understanding the difference between probate vs non probate assets can be a challenge. These two asset types often deliver significant differences with how they handle certain finances, so it’s critical to know how they work, and what benefits they offer that are set to your unique and individual needs.

If you are wondering, "What is Probate?" , check out the comprehensive guide!

Understanding Probate Assets

After a court determines that a person’s will is legally valid, the estate is administered by the executor, who carries out tasks such as accounting for and distributing all assets, as well as paying estate taxes and debts. This is a multi-step process, and often takes time to move forward.

Probate assets are those that are held in your name only, without other beneficiaries or rights of survivorship. When you die, these assets are distributed through the terms of your will. In cases of intestacy, Florida has specific rules regarding where these assets go, and in most cases it goes to the decedent’s spouse if applicable. But if a personal representative is named, it becomes their responsibility in handling these assets. Here’s how to account for assets in probate, as well as the types of probate assets there are:

Understanding Non Probate Assets

In cases of non probate assets, these usually have a beneficiary designation or are held as joint tenants with survivorship rights or payable on death. For non probate assets, a will does not control how these are distributed, and they are not handled by a probate court. Some non probate assets include:

How to Account For Assets in Probate

When it comes to understanding probate rules and processes, it’s important to know how to account for assets in probate. A personal representative, or executor, is most often the person tasked with handling the duties regarding transferring property from the decedent’s estate to the heirs. These duties can include:

Executors are advised to meet with an attorney to facilitate these duties, and eventually file a petition with the probate court to move forward with their probate assets. The attorney will go over any wills and death certificates, and identify any of the debts a decedent may owe.

Walser Law Firm, Elder Law and Probate Attorneys

After analyzing your probate vs non probate assets, your next move should be to contact an estate planning and probate attorney to go forward with your assets.

It’s always important to have experience by your side when you’re planning out the future of your estate, as well as handling your probate vs non probate assets. Walser Law Firm is here to guide you through every step of arranging for and protecting your assets, with more than three decades’ worth of experience providing expert elder law, probate services , and estate planning in Florida.

Our Trust and Estate law firm is equipped with experienced Florida Probate attorneys who can provide affordable and timely probate services for the settling of an estate with property located in any of Florida’s 67 counties. For more information regarding our services, contact Walser Law Firm today.

Estate Planning For LGBT Couples

Thu, 11 Nov 2021 07:06:00 GMT

Estate planning for LGBT couples is certainly one of the many financial decisions impacted by the long-awaited legalization of same-sex marriage. Prior to the 2015 Obergefell vs. Hodges Supreme Court decision, same-sex couples were unable to withhold many of the same legal securities that heterosexual couples were guaranteed. However, even now, after same-sex marriage has become recognized by the state, the process of many of these legal instances, such as LGBT estate planning, can be different, and it’s important to understand the steps necessary when considering a financial plan for the future.

The Importance of Wills

For LGBTQ+ couples who are married or in a domestic partnership, the importance of a will can ease many financial uncertainties. The intestacy laws of most state statutes rarely include a domestic partner, and without a proper will, they will be disinherited from any assets regardless of intentions.

For married couples who don’t want to jeopardize their spouse’s inheritance, a trust may be a good option. Establishing a trust offers exceptional asset protections to wills, especially when they are contested. However, if a trust is likely unobtainable, individuals can create a “no contest” clause in their will that explains why they are leaving certain assets to a spouse instead of their family.

Legally Naming Partner or Spouse

While a will is an essential part of any estate planning, same-sex spouses tend to have a greater challenge when making financial or medical decisions for partners who are incapacitated or unable to communicate. Fortunately, many estate planning documents exist to allow for an individual to grant authority to a partner or spouse, to make financial or medical decisions for them in these cases. Some of these documents include:

Understanding the Unlimited Marital Deduction

The legalization of same-sex marriage allowed for same-sex couples to enjoy the unlimited marital deduction for federal estate and gift taxes. What this means, essentially, is that gay and lesbian couples can now generally leave an unlimited amount of assets to their spouses without triggering a federal estate tax. They can also now roll over assets from a deceased spouse’s retirement account to their own without a mandatory distribution. By utilizing these marital deductions and roll-over assets, same-sex couples can free up considerable liquidity.

Appointing Guardianship For Children

It is not uncommon for courts to make decisions about guardianship for children, and many times the spouse’s family of origin or another biological parent will be given preference. For same-sex couples, it’s extremely important to formally nominate a spouse or partner as a legal guardian for a child, to avoid any complications about who is stepping in when that time comes.

Working With an Attorney For LGBT Estate Planning

To ensure that wishes are carried out during someone’s lifetime, and that assets will pass along in the manner in which they desire, working with an attorney or skilled professional can help any same-sex couple with estate planning. These LGBT wills and trusts attorneys work closely with individuals to make sure that all unique needs are addressed.

Walser Law Firm

Walser Law Firm has been helping diverse families throughout Florida with estate planning and probate services for more than three decades. We understand the positive impact these laws have on the LGBT community in Boca Raton, Palm Beach, and throughout the State of Florida, and applaud the recognition of these important LGBT rights, including estate planning.

The Walser Law Firm fully supports LGBT rights. Our attorneys protect the rights of same-sex couples through crucial estate and life planning tools. Our estate planning services for LGBT couples include writing a will, drafting a living will and power of attorney, addressing guardianship, and many others. If you or someone you know wishes to take the right steps in estate planning, feel free to learn more about our exceptional services or contact us today.

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Understanding the Different Types of Guardianship in Florida

Wed, 18 Aug 2021 05:34:00 GMT

The many types of Guardianship in Florida all come with their distinct purposes, and it’s important to know how they work to prepare for all of life’s uncertainties that may call for their existence.

An unsettling truth we all face is the possibility that an emergency may interfere with our daily lives at any point. And, while it’s difficult to confront these thoughts constantly, it is very important to be proactive in our understanding of what can happen in these scenarios, particularly for our families and friends. The types of Guardianship in Florida range widely to cover nearly all of these “what-ifs”, as well as other situations that don’t necessarily relate to loss, or death.

What Are Guardianship Rights in Florida?

A guardian is a surrogate decision-maker appointed by a court to help make financial or personal decisions for an individual. Florida law requires the court to appoint a guardian for a minor in the event that their parents die, or become incapacitated. State law also allows for voluntary/involuntary guardianship. Voluntary guardianship is granted in situations where an adult is physically or mentally incapable of making certain decisions, but they voluntarily petition for the appointment. Involuntary guardianship is when someone else makes the decision to appoint a guardian through the court.

In most circumstances, the court decides what rights a guardian may have over an individual. Whether it is a minor who can’t make decisions for themselves, or an adult with a disability, it is the court’s duty to appoint a guardian to protect the individual’s rights. All minor and adult guardianships are subject to court oversight.

Specific Types of Guardianship

Various types of Guardianships exist barring certain circumstances that may call for specific reasons to request Guardianship in Florida. These can include:

If the court believes an individual may be in immediate danger, or at risk of having property wasted or lost, an Emergency Guardianship will be granted. The court specifically lists the duties of the guardian in a written order until they are potentially granted permanent guardianship, usually handled in a small hearing.

This occurs when parents or other legal guardians temporarily allow someone else to care for their child or loved one. This isn’t always a situation where there is concern for an individual’s well-being. It can be granted to an individual’s family member or loved one if the parents are out of the country and can’t handle tasks such as medical care or school enrollment. This temporary guardianship usually continues until the court decides whether to grant permanent guardianship, name someone else, or restore the individual’s rights.

In instances where an individual is only partially incapacitated, and can only make some, but not all, of their own decisions, a Limited Guardianship may be granted. Guardians appointed in this way lose some but not all of their rights, and can only take actions appointed by the court. However, they will keep all rights not taken by a court order.

When an individual has been deemed totally incapacitated, they are then placed under what is known as Full or Plenary Guardianship. It is the most restrictive type and few people require it, as individuals under it cannot retain any rights.

If an individual has a developmental disability or has been deemed by a psychiatrist as incompetent to consent to treatment, a Guardian Advocate is often appointed. The Guardian Advocate is then able to obtain legal authority to act on behalf of the individual who may only be partially able to make decisions on their own. However, the individual is not required to be declared as incapacitated. Florida law requires Guardian Advocates to allow the person to participate in decisions affecting their life, and they are mandated to notify the court if the person under guardianship has retained some capacity.

Court-Deemed Incapacitation

A guardian may not be granted to an individual who simply makes poor decisions for themselves – they must be proven to be incapacitated in some manner. A court-appointed exam will assess a person’s physical and mental capability to determine whether or not they require legal guardianship. In some situations, the court has the ability to rule a child as emancipated, meaning they are legally treated as an adult. However, if this isn’t the case, the court will appoint a guardian who assumes the responsibilities of a parent until the child reaches 18 years old.

Walser Law Firm

Our team at Walser Law Firm is here to help you establish guardianship or handle matters regarding a legal relationship. We understand that these decisions come with their uncertainties and legal ramifications, and our job is to ensure that you are given the proper guidance and care through a difficult situation. We have been assisting individuals through this process for over 30 years, and pride ourselves on protecting the rights of guardians/wards, and helping those responsible for others’ well-being through every step of the process. Contact us to schedule a consultation with a guardianship attorney, or for any general questions, so we can strategize a solution to your specific circumstances.

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How Does a Special Needs Trust Work?

Mon, 16 Aug 2021 12:59:00 GMT

At Walser Law Firm, we’re often asked the question: How does a special needs trust work? Fortunately, Special Needs Trusts, or SNTs, are very straight-forward, as long as you understand the exact qualifications necessary, and the different types of trusts available given your circumstance.

If you have a disabled dependent like a child with special needs or a loved one in a nursing home, the ability to provide for them is of course a necessity. However, many instances of financial compensation can cause larger issues, like stripping the beneficiary of government benefits they’d normally be able to receive, like SSI or Medicaid. In Florida, there are a number of SNTs available to help you or your loved one stay financially secure, without losing other benefits in the process. So, how does a special needs trust work? Well, let’s first go over the various types of SNTs the state of Florida provides.

Special Needs Trusts in Florida

The two main types of special needs trusts in Florida are First-Party and Third-Party. The difference mainly depends on whose property is funding the trust, but other circumstances allow for a clearer indication of which option is better for you.

These SNTs are most often used when the person with a disability inherits property or money outright. They can also be used when an individual with personally owned assets later becomes disabled, and needs to qualify for benefits with an assets or income limitation. Formed and mandated under Federal Law, first-party SNTs can be established by any legally or mentally competent SNT beneficiary. They are funded with property that belongs to the beneficiary or to which the beneficiary is or becomes legally entitled.

Special needs trust benefits in a first-party SNT are only available for the sole use of that beneficiary, who must be legally classified as “disabled” by government standards. All amounts remaining in first-party SNTs after the beneficiary’s death must be paid back, up to an equal amount of medical assistance benefits paid for by a Medicaid program in their lifetime.

These are most commonly used by persons who wish to plan for a loved one with special needs in advance, such as parents, grandparents, siblings or legal guardians. They can be drafted as a stand-alone SNT, or included in a Last Will & Testament, or an inter-vivos “living trust”. The latter two instances can only come into existence after the death of the individual whose Will or Trust created the SNT. A stand-alone SNT can be used as a receptacle for any lifetime or post-mortem gifts given by the beneficiary’s family or friends.

Special needs trust benefits in a third-party SNT differ in that there is no requirement to use remaining assets for reimbursement toward Medicaid benefits received in the beneficiary’s lifetime. Therefore, these are extremely useful for people who wish to set aside property for a beneficiary with disabilities, and still remain in total control of where the remaining assets go upon the beneficiary’s death.

Who Can Benefit From Special Needs Trusts?

Special needs trust benefits can be provided to a number of different people in a number of different circumstances. These can include:

Walser Law Firm

For over 30 years, our team at Walser Law Firm has been helping people create and maintain Special Needs Trusts for them or for their loved ones. If someone you know could benefit from a Special Needs Trust, please don’t hesitate to contact us today.

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