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Why To Consider A Pour-Over Will

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Planning your estate can be a daunting process. While the actual experience is fairly streamlined when working with an experienced attorney, people tend to want to avoid thinking about their own mortality. However, this can have dire consequences for your loved ones. When you die (with or without a will) your estate must first go through the Florida probate process. Through this process, any debts or liens on your estate are settled before the assets are distributed to your heirs. If you do not have a will, the remaining assets will be distributed by means of intestate succession. These are rules dictated by statute defining your heirs based on their familial relationship to you. In other words, it’s entirely out of your hands where your assets go. If you have a will, the remaining assets will likely be distributed in accordance with your stated wishes to whatever extent possible. However, beneficiaries have a right to challenge the will if they don’t feel they got a fair share. This can significantly prolong the probate process.

Avoiding Probate

There are many good reasons to try and avoid probate. For one, it’s a long process. Even for small, simple estates, probate in Florida is expected to take about six months. The larger and more complex the estate, the longer the estate will take to settle. Any challenges to the estate will also affect and prolong this time frame. This is relevant for a number of reasons. First, heirs will not have access to the assets while they are in probate. This means that if you have family members who were financially dependent on you while you were alive, they may be left in a dire financial situation while the estate is sorted out, going months or even years without access to the assets they depend on. Additionally, the cost of probate is deducted from the assets prior to their distribution. This means the longer the probate process is, the more it will deplete the estate. For this reason, if you have a large or complex estate, the best estate planning advice is to avoid probate by creating a revocable living trust.

What is a Revocable Living Trust?

A revocable living trust is a trust that you form while you are alive. You can transfer ownership of your assets to the trust, so that when you pass away they will not be “your” assets anymore. Instead, they will belong to the trust. This allows these assets to effectively bypass the entire probate process, giving your intended beneficiaries immediate access or ownership upon your death and avoiding unnecessary probate fees.

What is a Pour-Over Will?

A pour-over will is essentially an insurance policy for your revocable living trust. Any assets not transferred into the trust before your death will still be required to go through probate. Working with a lawyer can generally ensure that all assets are accounted for and successfully transferred, but it often happens that there are still assets that exist outside of the trust at the time of death. A pour-over will is a will stating that any assets left in the decedent’s name at the time of death should be transferred to the trust. In other words, it’s essentially a will that names the trust as the decedent’s beneficiary. While this is still a will, and therefore cannot avoid probate, this kind of will will significantly streamline the probate process, making it as clear, cost-effective, and efficient as possible, and ensuring that all assets will end up in the trust created by the testator.

Talk to a Florida Estate Planning Attorney

If you are ready to make plans for the distribution and protection of your estate, or want to make sure that your estate plan is comprehensive and as advantageous as possible, contact a West Palm Beach estate planning attorney at the Law Offices of Larry E. Bray.

Resources:

investopedia.com/terms/p/pour-overwill.asp

flcourts.org/Resources-Services/Court-Improvement/Family-Courts/Family-Law-Self-Help-Information/Probate

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