FAQs
- What is the difference between a Last Will and Testament and a Living Will?
- What is Probate and Trust Administration?
- What is a Personal Representative?
- How long is Probate or Trust Administration?
- What is a Trust?
What is the difference between a Last Will and Testament and a Living Will?
Many people confuse these two documents and sometimes believe they are the same document. They are two very different estate planning documents. A living will is a legal document, sometimes referred to as an advanced directive. In Florida, a living will deals with whether a person wants to be kept alive by life prolonging measures when they have a terminal condition, end-stage condition, or a persistent vegetative state. A living will is only effective when a person has a terminal condition, end-stage condition, or a persistent vegetative state.
A last will and testament is a legal document where you name a person to manage your estate and advises to whom your estate shall be devised to. A last will and testament is only effective once a person has died.
What is Probate and Trust Administration?
Probate is a court monitored process to pay a decedent’s final expenses and transfer decedent’s assets from their name to their beneficiaries.
If you die with a will (“testate”) the probate judge determines if your will is valid, appoints your nominated personal representative (also known as an executor) and monitors the personal representative to make sure your creditors are paid and the beneficiaries you name in your will properly receive your estate.
If you die without a will (“intestate”) the probate judge appoints a personal representative and monitors the personal representative to make sure your creditors are paid. The beneficiaries of your intestate estate will be determined by state law.
Trust administration is very similar to probate in that your successor trustee makes sure your creditors are paid and then distributes your trust assets to the beneficiaries named in your trust. However, a successor trustee is not monitored by the court system, meaning there is no one to watch the trustee to ensure the bills are paid and assets are properly distributed to the beneficiaries named in your trust.
What is a Personal Representative?
A Personal Representative, or Executor, of an Estate is the person administering a probate estate. The Personal Representative will work closely with the probate attorney to marshal decedent’s assets, pay decedent’s final expenses, and distribute the remaining assets to decedent’s beneficiaries.
How long is Probate or Trust Administration?
If an estate or trust is not liable for federal estate tax (there is no federal estate tax in 2010) then probate and trust administration generally lasts 6-12 months from the time a Personal Representative is appointed by the probate court or a successor trustee takes office. If an estate or trust is liable for federal estate tax (in 2011 estates valued over $1,000,000.00) then probate or trust administration generally lasts 2 years.
A trust is a legal entity that holds title to property (real or personal) for the benefit of one or more people, charities, pets, etc. Property titled in the name of a trust avoids probate. Therefore, administering a trust can take substantially less time than probate.
