Estate Planning

What are advance directives?

The advance directives package is a set of documents in which you can appoint individuals of whom you trust to manage your financial affairs and make vital decisions regarding your health care and welfare should you become mentally and/or physically incapacitated.

The advance directives package consists of:

  1. The durable power of attorney;
  2. The designation of health care surrogate;
  3. The living will; and
  4. The pre-need guardian designation.

The durable power of attorney

A durable power of attorney is a document in which you appoint an individual, called an attorney-in-fact, who is vested with the power to handle your assets, bank accounts, investments, and real estate, should you become incapacitated.

The durable power of attorney is vital as it may avoid the need for your loved ones to have to petition the guardianship court to seek the legal authority to act on your behalf to pay your bills, manage your accounts/investments and protect your assets.

The durable power of attorney is only valid and enforceable during your lifetime.

The designation of health care surrogate

A designation of health care surrogate is a document in which you appoint an individual, your health care surrogate, who is vested with the power to make health care decisions on your behalf should you become incapacitated.  A very important aspect of this particular designation is the power to decide when to withdraw medical procedures.

The designation of health care surrogate is equally vital as it may avoid the need for your loved ones to have to petition the guardianship court to seek the legal authority to make those health-related decisions on your behalf during terms of incapacity.

The living will

A living will is a document in which you make a written declaration specifying your intentions and directions should you encounter a period in your life where you are incapacitated and you are being kept alive solely by artificial, life-prolonging procedures and doctors have made the determination that you have no medically reasonable opportunity for recovery.  The typical instruction contained in a living will is the removal from life-prolonging procedures, but that is not necessarily the choice and direction that can be mandated by a living will in Florida.

The pre-need guardian designation

A pre-need guardian designation is a document in which you can designate and appoint and individual, your pre-need guardian, to serve as your legal guardian should you become incapacitated.  You also have the opportunity to designate and appoint a pre-need guardian for your minor children in the event you become incapacitated or upon your death.  Should you choose not to or fail to designate a pre-need guardian for yourself and/or your minor children, a guardianship court will make that decision for you in the event of your incapacity.

Is it a good idea to hire an attorney to prepare advance directives for you?

An advance directive package is comprised of important and powerful legal documents, as they will provide individuals the authority to act on your behalf with your legal authority.  These documents should be drafted by an experienced and qualified attorney to meet your specific circumstances and needs.  You may not receive any or all of the protection you desire or need should you use mass-produced templates in which you will fill in the blanks.

Do you have to be competent to sign the advance directive documents?

At the time at which you are signing the advance directive documents you must have the ability to understand what you are signing.  You must be able to understand the effect of the documents you are signing, to whom you are giving this authority and how you may be affected by the authority you are granting.

Will the advance directives avoid the need for a guardianship?

If you were to become incapacitated during your lifetime and you have executed the advance directives prior to the period of your incapacity, it should not be necessary to have the court appoint a guardian for you since your attorney-in-fact and/or health care surrogate will already have the authority to act on your behalf.  Assuming the attorney-in-fact and/or health care surrogate has all of the powers necessary to care for your financial and health-care needs, your loved should not have to file guardianship proceedings and, even should they be filed, a guardianship may be avoided by a showing to the court that the advance directives are in place and it is prudent to allow the attorney-in-fact and/or health care surrogate to act on your behalf.

What rules are your attorney-in-fact and/or health care surrogate required to follow?

When acting as an attorney-in-fact and/or a health care surrogate, those individuals are what the law calls a “fiduciary” and as a fiduciary are given many responsibilities under the law.  These responsibilities include the general duty not to take any actions that are not authorized by the documents which have appointed them to these roles.  Also, when acting on your behalf your fiduciary must only take actions which are in accordance with your expectations, in your best interests, and in tune with your estate plan.  When managing your investments, the attorney-in-fact must invest and manage your investments as would a prudent investor.  This means that the attorney-in-fact must use reasonable care and caution in managing your assets.  If the attorney-in-fact and/or health care surrogate has special skill or expertise, that fiduciary is held to a legal standard to use all of those skills on your behalf.  Your fiduciary must also keep careful records and may be required to provide an accounting of your assets or history of your health care.

What is the difference between a health care surrogate designation and durable power of attorney?

Unlike a durable power of attorney, the health care surrogate has no authority to act on your behalf unless and until an attending physician has determined that you lack sufficient capacity to make informed decisions regarding your health care.  Should your physician have any doubt about your capacity, a second physician is required to agree with your physician’s conclusion that you lack the required capacity to make informed medical decisions before the surrogate has the authority to make decisions on your behalf.

What happens if someone files a petition to be named your guardian?

If a court proceeding has been commenced to establish your incapacity and someone is seeking to be named your guardian, your durable power of attorney is immediately suspended and your attorney-in-fact must cease all actions on your behalf.  The health care surrogate, on the other hand, is not suspended automatically and will only be suspended if specifically done so by the guardianship court.  Your attorney-in-fact can ask the guardianship court for special permission to deal with an emergency, if necessary, but even if granted it would be limited to the specific emergency and remain suspended for all other purposes.

This pamphlet is intended to provide general legal information regarding wills and estate planning and is not intended to be relied upon for your specific circumstances.  You can only get the proper legal advice about the exact estate plan for your particular needs by meeting with an attorney and discussing your legal rights and responsibilities.

Why do you need a will?

What does a will do for you?

While you are alive and have full mental capacity, you solely claim, manage, and transfer your assets, like bank accounts, real estate and automobiles, simply by signing your name.  This is because these assets are titled to you and you simply need to provide adequate identification to prove who you are to claim the right to them.  Once you have passed away, though, you obviously no longer have the ability to claim these assets and no one else can until they are given authority to do so.  Your last will and testament is the document in which you can name the person with authority to carry out your wishes and leave directions as to who you want to have your assets and how and when they can have your assets.  A will can also appoint a person who will be responsible for your minor children and can provide direction as to how they will be cared for in your absence.

Is it a good idea to hire an attorney to do a will?

The preparation of a will requires many important decisions that necessitate the professional judgment that can only be gained from extensive legal education and experience.  A qualified attorney can help avoid the numerous pitfalls and provide advice as to the estate plan which is best suited for your specific and unique circumstances.  While you may think that you only need a “simple will”, even the most modest of estates have certain complexities which only an experienced lawyer can assist with navigating through effectively.

What happens if you do not have a will?

Should you pass away without a last will and testament, your assets will be passed down to your heirs, your spouse, children, parents, siblings, depending upon your circumstances, according to a set of rules which are set by law, without any consideration for your wishes or the needs of your specific loved ones.  When you do not have a will, the court will appoint a person with authority to manage your estate, which may be someone you do not even know.

Who can make a will?

In the State of Florida there are some basic requirements to make a valid last will and testament:

  1. You must be at least eighteen (18) years of age;
  2. You must be of sound mind;
  3. Your will must be in writing; and
  4. You must sign your will in the presence of witnesses and a notary, who must also sign the will.

Does your will expire? 

Your last will and testament does not “expire” unless and until it is amended or revoked in the proper manner as required by law.  Actually, you can change your will as often as you would like as long as you have your sanity and you are not acting under undue influence, duress or fraud, and that any changes are made within the manner required by law.  Any changes within your family structure, whether it be births, deaths, marriages or divorces, substantial additions or subtractions to the type and size of your assets, or even changes in the law may require the review and consideration of your circumstances, preferably with the assistance of a qualified attorney.

What if you have a will from another state?

If you have recently moved to Florida from some other state or country, you should definitely have your last will and testament reviewed by a qualified Florida attorney to ensure that you have a will that is valid according to Florida law.  Before your will can effectively gather and distribute your assets, it must be found to be valid within a probate court.  If your will has been executed properly it may be admitted to the probate court without any further proof.  But if was not done completely up to Florida law it may require some additional effort, time and expense before it can be admitted.  If your will is not executed within strict compliance to Florida law it will not be valid no matter how much you paid for it, how much time and effort it took to complete it, and how official it may look.  It is very important to execute your will with an experienced attorney, who is knowledgeable as to how the will is to be executed.

What is probate?

Probate is the court-supervised process for locating and collecting your assets, after you have passed away, paying your debts from these assets, and distributing your remaining assets to your beneficiaries, as outlined in your last will and testament, or your heirs, as determined by Florida law if you pass away without a will.  Probate is a necessity to pass the ownership of assets that are titled to you to your beneficiaries or heirs, wind up your financial affairs, and make payment to your creditors.  If you pass away with a valid will, it will determine who directs this process on your behalf, specifically name your beneficiaries and the percentages and terms by which they are transferred title to your assets, and give directions to the individuals who will be entrusted with the custody to your minor children.

How long does probate take?

Every probate administration is different and the length of time it takes to complete a probate administration will be dependent upon the circumstances.  Some of the issues which may lengthen the time of a probate administration are the necessity for the sale of estate real property, disputed creditor claims or a contest of the validity of the will, to name a few.  The most simple of estates must remain open for at least three (3) months, which is the creditor claim period, and it is not unreasonable to expect such an estate to take approximately six (6) to nine (9) months to complete.  If a federal estate tax return is not necessary, the closing documents of the estate are generally due within twelve (12) months of its opening, with some exceptions.  If a federal estate tax return is necessary, the return is due within nine (9) months of death, with an allowance for an extension of six (6) months, and the estate is then required to be closed within twelve (12) months from the date the tax return is filed.

 

This pamphlet is intended to provide general legal information regarding wills and estate planning and is not intended to be relied upon for your specific circumstances.  You can only get the proper legal advice about the exact estate plan for your particular needs by meeting with an attorney and discussing your legal rights and responsibilities.

 

Do you really need a trust?

What does a revocable living trust do for you?

A revocable living trust is a written agreement which allows you to manage your assets, like bank accounts, investments and real estate, to name a few, and then transfer them upon your passing.  The trust assets are managed by the trustee, which can yourself or another person, trust company or bank, if you so choose.  Since the trust is revocable you can amend or end it at any time during your lifetime, assuming you have full mental capacity.  While you are alive, the trust assets are managed and invested by the trustee, typically with little or no restriction on the liquidation or spending of trust assets.  Should you suffer from mental incapacity, your trustee, or successor trustee if you were the initial trustee, can continue to manage trust assets, make payment of your obligations and make decisions as to investment choices.  This should help avoid the necessity of a court-appointed guardian of your assets, which is a large advantage of the trust as an estate planning tool.  Then when you pass away, your trustee, or successor trustee, has the responsibility and immediate ability to pay all claims and taxes and, once completed, distribute your assets to your loved ones and other beneficiaries according to your wishes as stated in the revocable living trust agreement.  All of your assets must formally be titled to your trust prior to your passing or mental incapacity to get the full and proper benefit of the revocable living trust.  Assets left out of the trust may very well be subject to probate or guardianship.  

Is it a good idea to hire an attorney to do a trust?

The preparation of a revocable living trust requires many important decisions that necessitate the professional judgment that can only be gained from an experienced and qualified attorney.  The proper lawyer can help avoid some serious pitfalls and provide advice as to the estate plan which is best suited for your specific and unique circumstances.  The revocable living trust may be advantageous to a traditional last will and testament, but there are many factors that you should discuss with an experienced attorney prior to making the decision if a trust is best for your particular estate plan.  Ownership of assets must be in proper coordination between yourself, individually, and the trust.  Your familial, economic and tax goals should be reflected in your trust.  Choices are essential as to which assets should be placed within the trust, then they must be transferred, and the allocation of assets must be reviewed on a periodic basis.  A revocable living trust will enable you to accomplish your estate plans if you consult with a qualified attorney and follow the proper path toward preparation and implementation.

What is probate?

Probate is the court-supervised process for locating and collecting your assets, after you have passed away, paying your debts from these assets, and distributing your remaining assets to your beneficiaries, as outlined in your last will and testament, or your heirs, as determined by Florida law if you pass away without a will.  Probate is a necessity to pass the ownership of assets that are titled to you to your beneficiaries or heirs, wind up your financial affairs, and make payment to your creditors.  If you pass away with a valid will, it will determine who directs this process on your behalf, specifically name your beneficiaries and the percentages and terms by which they are transferred title to your assets, and give directions to the individuals who will be entrusted with the custody to your minor children.

How does a revocable living trust avoid probate?

A revocable living trust allows you to avoid probate by transferring your assets, prior to your passing, to your trustee and successor trustee.  This will avoid the need for your loved ones to be forced to resort to the probate court to transfer your assets.  Your trustee is vested with the immediate authority to manage your assets and there is no need to seek the authority from the probate court.  The titling of assets to the revocable living trust is necessary to avoid probate completely.  If you do not fully fund your trust, your loved ones will then need a probate administration for those assets outside the trust.

How will you know if your assets are titled to your revocable living trust?

Bank account statements, stock certificates, titles and deeds, all, will list the trustee as the owner on behalf of the trust.  You can also place assets into a trust by naming the trustee on behalf of the trust as the beneficiary of life insurance policies and financial accounts.  Your attorney will assist you with the transfer of your assets into the trust at the time you complete and execute it.  If you have made the decision to have real estate owned by the trust then it is vital that you have the deed prepared by an experienced attorney.  This attorney will help you understand and make the pertinent decisions regarding the effect of existing mortgages, homestead protections and title issues at the time the deed is drafted.

How do you benefit by avoiding probate?

The avoidance of probate administration will significantly lower the costs associated with administering your estate and, in most instances, allow the trustee to carry forward your wishes without any delay caused by court supervision.  Another definite benefit is the avoidance of probate in multiple states.  Because real estate is deeded within the state in which it is located, a probate administration, in some form, is required in each state in which you own real estate.  Transferring the ownership of all of your real estate, wherever located, to your revocable living trust during your lifetime can avoid such duplicative efforts.

How long does probate take?

Every probate administration is different and the length of time it takes to complete a probate administration will be dependent upon the circumstances.  Some of the issues which may lengthen the time of a probate administration are the necessity for the sale of estate real property, disputed creditor claims or a contest of the validity of the will, to name a few.  The most simple of estates must remain open for at least three (3) months, which is the creditor claim period, and it is not unreasonable to expect such an estate to take approximately six (6) to nine (9) months to complete.  If a federal estate tax return is not necessary, the closing documents of the estate are generally due within twelve (12) months of its opening, with some exceptions.  If a federal estate tax return is necessary, the return is due within nine (9) months of death, with an allowance for an extension of six (6) months, and the estate is then required to be closed within twelve (12) months from the date the tax return is filed.

 

This pamphlet is intended to provide general legal information regarding revocable living trusts and is not intended to be relied upon for your specific circumstances.  You can only get the proper legal advice about the exact estate plan for your particular needs by meeting with an attorney and discussing your legal rights and responsibilities.