Estate Planning Fundamentals in Florida
Many legal strategies are involved in estate planning, including wills, revocable living trusts, irrevocable trusts, durable powers of attorney, and health care documents in Florida. New clients often say they don’t have an estate plan, but they actually do!
In the absence of legal planning, their Florida estate will be distributed after death according to Florida’s laws of intestacy. Of course, this may not be the plan they would have chosen. A properly drafted estate plan replaces the intestacy laws while minimizing taxes and other estate costs.
More About Estate Planning Services in Indialantic, Melbourne, Palm Beach, and Viera, Florida:
Last Will and Testament (Will)
Your will is just one part of a comprehensive estate plan. If a person dies without a will, they are said to have died “intestate,” and state laws will determine how and to whom assets will be distributed. Some things you should know about wills:
- A will has no legal authority until after death. So, a will does not help manage a person’s affairs when they are incapacitated, whether by illness or injury.
- A will does not help an estate avoid probate. Probate is the court-supervised process of transferring ownership from a decedent to their heirs. A will is a legal document submitted to the probate court, so it will be your “admission ticket” to Brevard County probate.
- A will is an excellent place to nominate your minor children’s guardians (or backup parents) if they are orphaned. All parents of minor children should document their choice of guardians. If you leave this to chance, you could be setting up a family battle, and your children could end up with the wrong guardians.
A will allows you to select your executor (personal representative) who will carry out your wishes during the Brevard County probate process. Otherwise, you leave this to chance.
Florida Trusts: Revocable Living Trusts, Irrevocable Trusts, Testamentary Trusts, Special Needs Trusts
Trusts come in many “flavors.” They can be simple or complex and serve a variety of legal, personal, investment, or tax planning purposes. A qualified trust attorney knows which trust type can work best for your situation. At the most basic level, a trust is a legal entity with at least three parties involved:
- The trust-maker,
- The trustee (trust manager), and
- The trust beneficiary.
Often, all three parties are represented by one person or a married couple. In the case of a revocable living trust, a person may create a trust (the trust-maker) and name themselves the current trustee (trust manager) who manages the trust assets for their benefit (trust beneficiary).
Depending on the situation, there may be many advantages to establishing a trust, including avoiding probate court. In most cases, assets owned in a revocable living trust will pass to the trust beneficiaries (or heirs) immediately upon the death of the trust-maker(s) with no probate required. Certain trusts also may result in tax advantages both for the trust-maker and the beneficiary. Alternatively, they may be used to protect property from creditors or provide for someone else to manage and invest property for the trust-maker(s) and named beneficiaries. If well drafted by an experienced trust attorney, another advantage of trusts is their continuing effectiveness even if the trust-maker dies or becomes incapacitated.
Powers of Attorney for Finances in Florida
A power of attorney is a legal document giving another person (the attorney-in-fact) the legal right (powers) to do certain financial things for you. Those powers depend on the terms of the document. A power of attorney may be very broad or very limited and specific. All powers of attorney terminate upon the maker’s death (principal). A durable power of attorney is a great planning tool that allows you to designate a backup decision-maker in the event of incapacity. A power of attorney is a critical document that allows a named individual to pay bills, sign nursing home admission contracts, access retirement money, and handle investment decisions.
Florida Health Care Documents (or Advance Directives)
An advance directive is a document that specifies the medical and personal care you prefer should you lose the ability to make and communicate your own decisions. Anyone over the age of 18 may execute an advance directive. Your advance directive can specify who will make and communicate decisions for you. It offers end-of-life instructions about things like whether you want equipment used to prolong your life, the use of feeding tubes, and your decisions regarding organ donation.
A document that goes hand-in-hand with your advance directive is a HIPAA authorization to your medical providers to allow specified individuals to access your medical information. Without this authorization, your doctor may refuse to communicate with the person you chose to relay your medical decisions.
Please explore our website to learn more about our practice areas in estate planning and elder law, including special needs planning, dementia/Alzheimer’s planning, and probate. Please contact us to meet with one of our experienced attorneys.