Estate Planning and Documents

Probate vs. Non-Probate Assets

January 9, 2026 | by Chepenik Trushin LLP

Understanding the difference between those assets which must pass through probate and those which pass outside the probate process is essential for the proper administration of a person’s estate. Probate is the legal process by which the court oversees the marshalling of a decedent’s assets, the distribution of those assets to the decedent’s beneficiaries or heirs-at-law, and payment of any valid debts and taxes of the decedent. When a person dies with a valid Last Will and Testament (i.e., a Will executed in conformity with Florida’s “Will Act Formalities”), the court “admits” the Will to probate and authorizes distribution of any assets subject to probate to the beneficiaries identified in the Will. When a person dies without a valid Last Will and Testament, the court follows Florida’s laws of intestate (i.e., without a Will) succession and authorizes distribution of any assets subject to probate to the decedent’s heirs-at-law, which, depending on various factors, may include a surviving spouse, children, parents, siblings, etc.

Whether a probate administration is testate or intestate, a key question is always: “What assets are actually subject to probate”? In other words, what assets must be disclosed to the court and ultimately administered by the court for distribution to either the beneficiaries or heirs-at-law? In simple terms, any assets that a person dies owning solely in their own name upon their death are considered “probate assets,” or assets that must be administered by the court for distribution to the beneficiaries or heirs. For example, if a person dies owning a bank account titled solely in their own name, that is not designated as payable on death to any other person, that account must go through probate. Similarly, if someone owns an investment property (i.e., a property that is not their homestead under Florida law) in their own name on their date of death, and there are no joint owners or other interest-holders on the deed, that property likewise must go through the probate process.

However, with a strong estate plan, it is often possible to bypass the need for probate entirely. Again, those assets owned by a person solely in their own name upon their date of death must go through the probate process. But there are ways to title assets, or otherwise designate beneficiaries on those assets, in order to keep those assets out of probate. For instance, assets owned jointly with a right of survivorship do not need to go through probate upon the death of the first-to-die co-owner. As an example, if brother and sister Steven and Linda are listed as cotenants with rights of survivorship on the deed to an investment property they own together, then upon the death of Steve, his interest in the property would automatically pass to Linda the moment he dies. His interest in the property would automatically transfer to Linda by operation of his death, and there would be no need for his interest in the property to go through probate. Similarly, it is possible to designate a pay-on-death beneficiary on many types of assets, such as bank accounts and retirement accounts, such that those assets immediately pass to the designated beneficiary or beneficiaries upon a person’s death without the need to go through probate. As an example, let’s say Steve has a checking account titled in his own name with $100,000 in it, with Linda designated on the account as Steve’s pay-on-death beneficiary. Immediately upon Steve’s death, Linda has a right to claim the funds, without the account going through probate. Had Steve not designated Linda on the account as a pay-on-death beneficiary, the account otherwise would have needed to go through probate. Another common method of keeping assets out of probate is by titling them in the name of a revocable or irrevocable trust. Again, only those assets owned in someone’s own name upon their death are subject to probate; any assets properly titled to someone’s trust upon their death do NOT need to go through probate, and instead will be administered in accordance with the terms of the applicable trust.

Evolving Estate Planning Needs for Small Business Owners

June 27, 2025 | by Chepenik Trushin LLP

Family-owned businesses collectively create about half of US jobs and make up about 40 percent of the US economy. While family-owned businesses collectively form an economic leviathan, each small business and its owner face distinct needs and circumstances. Some may grow into multi-million-dollar enterprises, while others remain small but reliable. In both cases, and everything in between, small business owners need an estate plan to make sure that the wealth they fought so hard to build does not get lost after death.

Small business owners are savvy. They often know enough to incorporate and to hire a tax professional to help them comply with their tax obligations. Yet many business owners don’t consider the importance of estate planning or when they should work with an attorney to create an estate plan.

For an unmarried entrepreneur with no children and a new business, estate planning could be simple and may, if circumstances warrant, involve only the preparation of a will. But simple does not necessarily mean easy, and even in these “simple” cases it is still prudent to contact a Miami estate planning attorney to make sure that one’s will meets Florida’s legal requirements for a valid will.

Last-Minute Estate Planning: Are Deathbed Wills Valid?

January 22, 2025 | by Chepenik Trushin LLP

The creation and execution of a Last Will and Testament is often a formal, thorough process. The creation of a Will is best done with the advice and assistance of a lawyer, and the execution of a Will is also best done in the presence of that lawyer as well as other required witnesses. These formalities help ensure the Will accurately states the testator’s wishes and help prevent challenges to the will after the testator passes away. While formal creation and execution is the ideal scenario, it is not always the reality.

Sometimes, testators create and execute their Will at the last minute, possibly even on their deathbed when they know that death is imminent. This may happen because the testator fell ill suddenly, failed to execute a Will until they were elderly, or sought to change a previous Will before it was too late. Due to the circumstances that give rise to the creation of deathbed Wills, they are often contested after the testator passes away.

For a Will to be valid in Florida, it must be written, signed by the testator or by someone at their direction, and signed by two attesting witnesses. Florida does not recognize oral or handwritten Wills. If a testator attempts to express a Last Will and Testament simply by speaking their wishes, that oral expression will not constitute a valid Will under Florida law. Additionally, if a testator attempts to express a Last Will and Testament simply by writing down their wishes, that document likewise will not be valid under Florida law.

Advance Directives: Documenting your Health Care Wishes in the Event you Cannot Express them Yourself

November 11, 2024 | by Chepenik Trushin LLP

The Florida Legislature has enacted a statute that recognizes every competent adult’s right to make decisions regarding their health, including the right to refuse medical treatment. Fla. Stat. § 765.102(1). Further, the statute specifically allows “a competent adult to make an advance directive instructing his or her physician to provide, withhold, or withdraw life-prolonging procedures or to designate another to make the health care decision for him or her in the event that such person should become incapacitated and unable to personally direct his or her health care.” Fla. Stat. § 765.102(4).

Florida law defines an “advance directive” as “a witnessed written document or oral statement in which instructions are given by a principal or in which the principal’s desires are expressed concerning any aspect of the principal’s health care or health information.” Fla. Stat. § 765.101(1). In other words, an advance directive is a statement about how you want medical decisions to be made if you cannot make or express them yourself. People often execute advance directives when they are diagnosed with a life-threatening illness, but advance directives can be made at any point in time by a competent adult. For a number of reasons, it can be beneficial to put your wishes into writing before health concerns arise.

An advance directive “includes, but is not limited to, the designation of a health care surrogate, a living will, or an anatomical gift.” Fla. Stat. § 765.101(1).

Class Gifts: Leaving Assets to a Dynamic Group of People

September 9, 2024 | by Chepenik Trushin LLP

A class gift is a sum of assets that is given to and divided among a group of beneficiaries. The beneficiaries of a class gift are a group that can be expected to expand or contract between the time of will execution and the testator’s death. A class gift allows a testator to identify a group of beneficiaries in relation to their status or membership in a defined class, rather than identifying individuals particularly.

The Restatement explains that a class gift is “a disposition to beneficiaries who take as members of a group. Taking as members of a group means that the identities and shares of the beneficiaries are subject to fluctuation.” Further, the Restatement says that a “disposition is presumed to create a class gift if the terms of the disposition identify the beneficiaries only by a term of relationship or other group label. The presumption is rebutted if the language or circumstances establish that the transferor intended the identities and shares of the beneficiaries to be fixed.” RST (3d) §13.1.

A testator may want to leave a class gift if they want to devise property to a dynamic group, meaning a group whose membership can or may change over time. For example, a will may leave an asset to a group identified by language such as “my siblings,” “my nieces and nephews,” or “my children,” rather than by explicitly identifying the intended beneficiaries by name. A class gift avoids the necessity of revising the will when a member of the class later is born or dies. For example, a gift given “to my grandchildren” will include a grandchild already living when the testator executed their will, as well as other grandchildren later born following execution of the will. The enables the testator to leave a gift to all of their grandchildren without having to redo their will each time a new grandchild is born. Further, while groups are usually considered closed when the testator dies, there may be exceptions. For example, a child conceived but not born before the testator’s death could be considered a member of a group of the testator’s children.

Power to Disclaim: What happens when someone inherits something they do not want?

July 25, 2024 | by Chepenik Trushin LLP

Florida law defines “Disclaimer” as “the refusal to accept an interest in or power over property.” Fla. Stat. § 739.102(5). Further, Florida law states “A person may disclaim, in whole or in part, conditionally or unconditionally, any interest in or power over property, including a power of appointment. A person may disclaim the interest or power even if its creator imposed a spendthrift provision or similar restriction on transfer or a restriction or limitation on the right to disclaim. A disclaimer shall be unconditional unless the disclaimant explicitly provides otherwise in the disclaimer.” Fla. Stat. § 739.104(1).

This statute grants people the power to refuse a devise under a will or inheritance under intestacy. Individuals can refuse assets, right of survivorship, powers of appointment, etc. There are a number of reasons one may wish to disclaim their interest in an estate, including tax avoidance, protecting assets against creditors, or for personal reasons. When an individual disclaims an interest, it is important to note that they do not have a power to direct who takes the disclaimed interested in their place, and rather that the operative instrument or default statutory provisions govern who is to receive a disclaimed interest.

In Gardner v. Richardson, Mr. Gardner’s trust granted a life estate in a home to Ms. Richardson and gave the remainder interest to his children. After Mr. Gardner’s death, Ms. Richardson cared for the property. She lived in the home, paid the taxes and utility bills, and took responsibility for paying a portion of the mortgage. She banned Mr. Gardner’s children access to the home and wrote to the trustee, Wayne Gardner, saying she planned to live in the house until she died. The trustee filed an action to determine whether Ms. Richardson or Mr. Gardner’s children were responsible for paying the mortgage principal and interest. After the court held that Ms. Richardson was responsible for paying the mortgage interest, she attempted to disclaim her life estate even after living in the home for about two years. The trial court held that the disclaimer was ineffective, and Ms. Richardson appealed. The appellate court affirmed the court below and held that the disclaimer was ineffective because Ms. Richardson continued to occupy Mr. Gardner’s property to the exclusion of others, knew of her liability for the property’s expenses, and belatedly attempted to disclaim her life estate interest. Gardner v. Richardson (In re Gardner), 283 P.3d 676, 676 (Ct. App. 2012).

Understanding Will Revocation in Florida: A Legal Overview

March 14, 2024 | by Chepenik Trushin LLP

In estate planning, the preparation of a will is a crucial step toward ensuring that your assets are distributed according to your wishes upon your death. However, circumstances, relationships, and intent may change over time, which may lead to the need to update, revise, or completely revoke previously drafted testamentary documents. There are different ways to achieve the revocation of an existing will. In Florida, this process is filled with specific requirements that must be met for the revocation to be valid. A testator may revoke a will in three ways: (1) by writing, (2) by physical act, and (3) by operation of law.

Revocation by writing is controlled by Florida Statutes section 732.505. Pursuant to the statute, a will or codicil, wholly or in part, is revoked in two ways: (1) by a subsequent inconsistent will or codicil, even if the subsequent will or codicil does not expressly revoke all previous will or codicils, to the extent that the subsequent will or codicil is inconsistent with the prior will, or (2) “by a subsequent will, codicil, or other writing executed with the same formalities required for the execution of wills declaring the revocation.”

Revocation by physical act is controlled by Florida Statutes section 732.506. Pursuant to the statute, a will or codicil, with the exception of electronic wills, “is revoked by the testator, or some other person in the testator’s presence and at the testator’s direction, by burning, tearing, canceling, defacing, obliterating, or destroying It with the intent, and for the purpose, of revocation.” For electronic wills or codicils, revocation by physical act is effectuated by “deleting, canceling, rendering unreadable, or obliterating the electronic will or codicil, with the intent, and for the purpose, of revocation, as proved by clear and convincing evidence.” Note that, unlike revocation by writing, a will or codicil cannot be partially revoked by physical act.

Effective Ways to Shift Future Appreciation from a Taxable Estate – GRATs and IDGTs

May 9, 2023 | by Chepenik Trushin LLP

Large estates may be subject to the federal estate tax, which in 2023 applies a 40% tax on all wealth exceeding $12.92 million for individuals, or $28.94 million for married couples. High-net worth individuals often seek ways of reducing their estate tax liability on their already-amassed wealth, which is frequently done by applying “discounts” to their assets through a complicated web of valuation laws. There are other ways, however, to shift future appreciation of a valuable asset out of an estate, thus avoiding further taxation on a substantial increase in the value of an existing asset, such as a business or piece of real estate.

The strategy, in general, involves transferring the asset out of one’s estate, either by gift or sale, for a certain amount of money, thereby “freezing” the asset’s value. Once the asset is out of the estate, it is free to appreciate as much as possible, without the transferring taxpayer owing any further tax liability on the extra value. Through this strategy, a taxpayer owning a business worth $50 million could potentially save millions of dollars in estate taxes if that business grows to be worth $150 million in the following years. This strategy is not aimed at reducing estate tax on wealth already accumulated; rather, it is for minimizing tax on future wealth that would otherwise accumulate, leading to higher estate tax. Two vehicles, the GRAT and the IDGT, are most commonly used in these scenarios.

GRAT

Gifting property during life vs. after death: which is better?

December 22, 2022 | by Chepenik Trushin LLP

The estate tax, commonly referred to as the “death tax,” affects only certain estates with a taxable value beyond a set figure. For 2023, any estate exceeding a taxable value of $12.92 million is taxed at a rate of 40.00%. While this does not give cause for concern to the vast majority of individuals, these figures can and do change. The estate tax is often a topic of discussion in political debate and frequently changes. As recently as 2017, the amount to trigger estate tax was just under $5.5 millon. In 2008, the amount was $2 million. Future years could see a reduction in the presently-set amount, which could encompass individuals currently exempt from estate tax liability.

This variability poses concern from an estate planning perspective. While a relatively modest estate may be exempt from estate tax one year, it may very well be subject to the tax in another year. Thus, the higher the value of an estate, the more at-risk it is over time of owing an estate tax. To account for this, estate planners have utilized numerous strategies to reduce an estate before death and minimize potential estate tax liability. One such strategy is gifting property away on an annual basis during the testator’s life.

Individuals may gift a set amount of money each year without triggering any tax consequences. The federal government sets an annual exclusion that allows for a certain amount to be gifted tax-free each year to individual recipients. For 2023, the annual exclusion is $17,000 per recipient. In other words, if a mother gives $17,000 to each of her seven children in 2023, then $119,000 is removed from her ultimate estate tax-free. If such gifts are made on an annual basis (subject to each year’s gift tax exclusion amount, which may vary from year-to-year as the estate tax might), the mother can reduce her taxable estate substantially during her life, saving potentially millions of dollars in estate tax upon her death.

Designation of Personal Representative

November 2, 2022 | by Chepenik Trushin LLP

Earlier this year, actor Anne Heche passed away as the result of a fiery car crash. While at first it appeared she might recover, her condition continued to decline, and she remained in a coma for roughly one week after the crash. Soon thereafter, she was declared legally dead and removed from life support. Her date of death was August 11, 2022.

While this tragic passing in and of itself was surely traumatic for her loved ones, headlines began to spin once more when news of a messy estate battle broke. Her passing has since been followed by a very public battle over her estate due to a lack of proper estate planning on Ms. Heche’s part.

Ms. Heche had her first son, Homer, in 2002 with her then-husband Coleman Laffoon. She later had another son, Atlas, in 2009 with her then-boyfriend James Tupper. Now, after Ms. Heche’s death, her first son Homer and her ex-boyfriend Mr. Tupper are the primary individuals fighting over her estate.