Within my last eight years of experience in Planning Estates and handling Probates, I have found a pattern of common estate planning myths. No matter what stage of life you are planning for or planning around, these myths are always on the list of frequently asked questions and concerns.
If I have a Will, then I won’t have a probate.
False. The Will is nothing more than a set of instructions to the probate court on how you want your estate to be administered. When a person passes away with a Will, the individual nominated to be the Personal Representative, or Executor, of the Will petitions the probate court to have the Will admitted to probate. The contents of the Will provide guidance to the court as well as the Personal Representative. To avoid probate, it may be necessary to establish a Revocable Living Trust and fully fund it with your assets during your lifetime.
I am required to leave assets to my spouse.
True. In Florida, we have what is known as Elective Share. In a nutshell, this means that, without having a prenuptial or postnuptial agreement, your spouse is entitled to 30% of your gross estate. Even if you have specifically excluded your spouse from your Will and not named them as beneficiary on life insurance policies or other assets, they are still entitled to “elect” against the Will and receive their share.
If I want to disinherit someone, I have to leave them $1.00.
False. While this may be true in some jurisdictions, it does not apply in Florida. All that is needed to disinherit a natural heir from your Will is simple language stating that they are specifically excluded or to simply leave their name out of the Will all together.
If I have a disabled or special needs beneficiary, I must leave them out of my Will.
False. Clients often say this because they have heard nightmares about individuals being cut off from necessary Medicaid or SSI benefits after receiving an inheritance. To avoid any loss or interruption of public benefits, we can include a Supplemental or Special Needs Trust within an estate plan that will allow the disabled beneficiary to receive items and services that supplement their public benefits without having to lose them.
Trusts are only for millionaires.
False. There are many different kinds of trusts. Sure, some were created for wealthy individuals to assist with estate tax and other tax planning; however, we work with individuals and families of all different financial means and can create a trust customized for them. Some people simply prefer to have a trust for probate avoidance and a simple trust can be prepared exactly for that purpose.
I don’t need estate planning because “my children will do the right thing.”
False! Clients commonly say they plan to leave everything to one child because “he’s the oldest” or “she will do the right thing.” However, since money is involved, that is not the best approach for planning. If the entire estate is left to one person with the understanding that they will share it with siblings, that sharing is usually not carried out. If the Will or Trust does not specifically state that all children in the estate, then the one the money was left to has no legal obligation to share in the wealth.
Another common issue that arises is when clients place one child as joint on bank accounts and don’t realize that they are making the child a joint owner of that asset. An individual’s Will or Trust will not apply to accounts with joint surviving owners. In those circumstances, that money is often never shared or even disclosed to the other children. I hope busting these myths for you will help as you consider planning your estate. Please feel free to contact me for a free consultation!
– Attorney Sarah Schelling Peet