Basics of Estate Plans, Wills, Trusts and other Estate Planning Documents
Although many people are hesitant to talk about estate planning, or to bring the subject up with their parents, every Florida resident, no matter their age, should have certain estate planning documents in place. There are many uncertainties in our daily lives, and estate planning should be undertaken to minimize the consequences of an unforeseen event. At a minimum each person should have a Will, a Designation of Health Care Surrogate, a Durable Power of Attorney, a Living Will and a Declaration of Preneed Guardian. These documents are discussed more fully below.
What Constitutes a Valid Florida Will?
A person with a will becomes a testator; the testator must be at least eighteen years of age, of sound mind and body, and must have the will witnessed by at least two people who are considered competent, signed by witnesses in front of both the testator and one another, and signed by the testator in front of the witnesses. This is necessary in case the validity of the signatures should ever be court-challenged. If the will is drawn up by a qualified lawyer and is self-proving, challenges are much less likely to occur. Many attorneys recommend a document known as a pour-over will which can reduce the inevitable delays and costs of probate by transferring assets into a trust upon death.
The Consequences of Dying Intestate in the State of Florida
When a person is devoid of a will upon death this is known as dying intestate, and should this occur Florida inheritance law will specify who receives the decedent’s assets rather than those assets being distributed as the decedent wished. The basic rules regarding dying intestate in Florida are as follows:
- If there is a remaining spouse, but no child or grandchild, the surviving spouse will receive the entire estate.
- If there is a child, grandchild or other descendant but no spouse, the descendants will receive the entire estate.
- If the decedent dies prior to October 1, 2011, leaving both a spouse and one or more descendants of both spouses, the spouse will receive the first $20,000 as well as fifty percent of the remainder of the estate while the descendants will share the remaining fifty percent.
- In the case of a spouse and one or more descendants who are not children, grandchildren, great grandchildren, etc. of both spouses, then the spouse receives half while the descendants are granted the remaining half.
- The living spouse is permitted, under Florida law, to be chosen as personal representative; if there is no surviving spouse, the descendants must reach a majority agreement regarding who will serve as personal representative of the estate; even so, the court has the final say-so.
- The estate in its entirety will go to the parents of the decedent should there be no surviving spouse or lineal descendants, and should the parents be deceased, the siblings and their descendants are next in line to receive estate proceeds.
- Be aware that Florida inheritance laws provide only for family members, and there are no intestate provisions in place regarding unmarried domestic partners, charities, minor protection, special needs persons or friends.
When a person dies intestate a court-appointed representative will be chosen to administer the estate, and this person may well not be the person the decedent would choose. For those who care about who inherits assets that have taken them a lifetime of work to accumulate, it is necessary that a valid will be in place. Many people feel they don’t have an “estate” if they only have a home, a car and a small bank account, however appropriate planning for the future can ensure that those assets, no matter how large or small, go to the people the decedent would want to have them. Additionally, the probate process is much lengthier and more complex in those cases where no will exists.
Revocable Living Trusts
A Revocable Living Trust allows assets to be managed without court intervention in the event of death or incapacity, and to be most effective, the title of all existing assets must be transferred to the trust. A Revocable Living Trust allows assets placed in the trust to avoid probate as well as for a successor trustee to take over management of those assets with no court proceedings necessary. Living trusts require the services of a qualified attorney who will draft the document as well as offer informed legal counsel in choosing which assets to transfer.
Before you decide to create a revocable trust, it is essential that you consult a qualified estate planning attorney as not everyone can benefit from such a trust. The attorney you choose will examine your assets, determining which ones would be subject to probate as well as review your financial statements. There are viable alternatives to creating a revocable living trust and your attorney will discuss these with you. The pros and cons will be considered as to whether there is any benefit in a transfer of ownership of your assets to a Revocable Living Trust. The cost of creating and funding a Revocable Living Trust may also be a factor in determining whether it is a viable option for each individual person.
Other Necessary Lifetime Documents
Alongside a Will or Trust to properly administer an estate upon death, every person should also have the following legal documents in place.
- The Durable Power of Attorney document appoints a person known as an “attorney-in-fact,” who is authorized to make necessary business, financial and legal decisions for a person who becomes incapacitated. Should a Durable Power of Attorney not be in place, it becomes necessary for the courts to appoint a guardian who will manage the affairs and make the decisions in the event of incapacitation.
- A Designation of Health Care Surrogate grants the right to make medical decisions on the behalf of an incapacitated person to another chosen individual. This could be critical in a situation where a person was unable to make necessary medical decisions by themselves and would naturally want someone close to them to make those decisions which can sometimes mean the difference between life and death.
- If a person is concerned about life-prolonging medical procedures which will provide no curative benefits, they should definitely have a Living Will in place which designates a health care surrogate who can determine whether medical procedures should be withheld or withdrawn.
- Less commonly known about is the Declaration of Preneed Guardian which gives a person the opportunity to appoint a person to serve in the capacity as Guardian should the designated attorney and/or health care surrogate be unable to perform their duties.
Special Situations Regarding Estate Planning
Any person who has a special situation in their life including unmarried couples, the elderly, disabled persons and parents of minor or handicapped persons should definitely allow an attorney to handle the complexities of the situation. Medicaid or other governmental programs often become a factor in such situations, and require specialized knowledge.
Let us help you with your Florida Wills and Trusts needs. We offer a FREE initial consultation that will answer many of the additional questions not covered here on our web site. Call us in Jacksonville at (904) 900-2750 or toll free anywhere in Florida at 1-866-306-3550, or you can fill in and submit the form below.