About a month ago, this space discussed the concept of exempt property in the context of Florida estate administration. To refresh, certain property will be considered exempt from creditors when there is a surviving spouse or children of the testator. While this is an important concept during the probate and administration process, it also can make a difference in certain situations where administration of the estate may not be necessary.
This blog has discussed previously the concept of 'elective shares' and how they can be waived during an estate administration in Florida. To refresh, the 'elective share' is that portion of the estate that a spouse (and sometimes child) may take instead of what was left to him or her in the decedent's last will and testament. A related concept that we touched on but did not expound upon is that of 'exempt property.'
A previous post here addressed the provision of a spouse's elective share in terms of the administration of estates in Florida. Spouses can choose to keep whatever they have been devised in the decedent's will or trust, or they can opt for the elective share, which in Florida is set at 30 percent of the estate. The public policy behind elective or spousal shares is to protect spouses and children from being completely disinherited by a will. While the law generally prevents disinheritance in this way, spouses can waive their rights to the elective share. But, how does a Florida resident go about doing this, and why would someone want to.
When many people think about wills, probate, or the administration of someone's estate, they typically think about what property has been left and the beneficiaries to whom it has been bequeathed. However, as this blog has touched on before, in the context of a discussion about the role of a personal representative, there are a few other steps that go in finalizing a Florida estate's administration. One of these steps is dealing with any creditors who may be owed money from the estate.
This blog has extensively discussed various forms of estate planning including trusts, wills and other documents designed to make decisions easier and cut red tape faster in case of a loved one's passing or incapacity. But what happens when there is a will and it needs to be administered through the probate process? You may be vaguely aware that many people hire attorneys to handle this procedure. But what exactly do lawyers do during probate?
Many people have older parents who have moved to Florida. Because it is a destination for so many retirees, the state is often the venue for people who need to create, change or update their wills. As people get older, they often have less confidence in their ability to do complex tasks, and less patience for dealing with them. As a result, it is often the case that elderly people ask their adult children or grandchildren to aid them in such situations. The updating of a will as part of an estate plan is one such task, but there are pitfalls for potential heirs who become involved in the actual estate planning process.
Whether one is the personal representative of someone else's estate or is in the midst of preparing his or her own estate plan, one issue that will need to be dealt with is creditors. Given the realities of modern life and the economic situation many people find themselves in, few individuals are going to die with no debt in their names. So what happens when an estate is administered in probate and there are creditors who are owed money?
Previously, this blog has discussed what wills are, as well as what happens if someone dies without a last will and testament. There are other special cases as well, however, including what is called an "elective share" or sometimes a "spousal share." As a public policy matter, elective shares are meant to prevent the intentional or accidental disinheriting of a spouse (and sometimes children) by a person's last will and testament.