Estate Planning

What is your “Estate”?

Your estate consists of everything you own, and more. Your estate generally consists of, but is not limited to, the following: liquid assets like cash, money in bank accounts, life insurance policies, annuities, individual retirement accounts, 401(k)s, tangible personal property, vehicles, jewelry, heirlooms, your family, your values and even your legacy.

What are Some Goals of Estate Planning?

Some important goals to consider in preparing a comprehensive estate plan are:

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What are the Different Kinds of Estate Planning Documents?

There are several different types of estate planning documents in Florida. Deciding which documents are an appropriate part of your comprehensive estate plan is a complex legal determination made based upon several variables including your family dynamics, the extent and nature of your assets, who you would like to leave the assets to, and so on. Below is a list of common estate planning documents:

Last Will and Testament: A Will directs who is to receive your assets upon your passing and generally disposes of assets through the probate process. Your Will is “proven up” in probate Court and a personal representative is charged with carrying out your wishes in the court-supervised probate process. You may change your Will at any time by executing a codicil to the Will or revoking your prior Will by executing a new Will. Your Will may not be changed by marking through words or sentences, or making handwritten changes on the original document. Changes to your Will must be made with the same formalities that were required when you initially made your Will in order to be effective under Florida law.

Feeling Lost as a Personal Representative? Explore Your Duties & Responsibilities as a Personal Representative!

If you would like to discuss having a Will prepared or make changes to an existing Will, Contact Us to schedule a consultation with one of our experienced estate planning attorneys.

Revocable Living Trust : A trust is a document that allows you to transfer ownership of most of your assets from yourself to the trust, and name you (or someone you choose) as the trustee to be in control of the assets. This is an agreement you make during your lifetime for the benefit of yourself, and for the benefit of your spouse or other intended beneficiaries after your death. If the creator (the Grantor/Settlor) of this agreement sets the trust up during his or her lifetime, it is called a “Living Trust.” If the creator retains the right to change, amend or dissolve the trust during his or her lifetime, it is a “Revocable Living Trust.”

A Revocable Living Trust, if properly funded, will help your family and loved ones avoid probate upon your death. A revocable living trust allows for a seamless transition during your lifetime, through incapacity, and after death. You can select who you would like to be in charge of your trust estate at incapacity, and who you would like to be in charge of your trust estate at death. You are able to control how your beneficiaries inherit their interests and, if properly drafted, you can prevent creditors of your beneficiaries from laying claim to your family legacy during your lifetime. Under most circumstances, your Revocable Living Trust can be modified, revoked or amended, provided you have the requisite capacity.

What are the Advantages of a Revocable Living Trust?

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If you would like to discuss having a Revocable Living Trust prepared or make changes to an existing trust, Contact Us to schedule a consultation with one of our experienced estate planning attorneys

Advanced Directives:

The term Advanced Directive generally refers to your health care documents, such as the Designation of Health Care Surrogate and Living Will Declaration.

Living Will Declaration: A Living Will Declaration is an advanced directive in which you make your wishes known with respect to the withholding or withdrawal of certain life-prolonging procedures under very limited, specific circumstances. Your Living Will Declaration will not be given effect as long as you can communicate your wishes to your physician and other health care providers at the time of your treatment. If you lose the ability to communicate your wishes, your Living Will Declaration still will not be given effect unless your attending physician and a second consulting physician both agree that your condition is such that it would be appropriate to invoke your Living Will as the final expression of your wishes. Your Living Will Declaration may be modified or revoked at any time, as long as you have capacity.

NOTE: We recommend providing copies of your Designation of Heath Care Surrogate and Living Will Declaration to the agent under your health care surrogate, your general physician, any specialists you see, and to the hospital or hospitals where you are likely to go for treatment. We also recommend discussing these documents with your physician at your next scheduled appointment to confirm that he or she is willing to honor your wishes regarding the cessation or withholding of life prolonging procedures in appropriate circumstances. We further recommend that you ask your physician to make an entry in your medical records confirming the discussion of your wishes as expressed in your Living Will Declaration and confirming that your physician has copies of both documents in your file.

If you would like to discuss having a Living Will Declaration prepared or make changes to an existing Living Will, Contact Us to schedule a consultation with one of our experienced estate planning attorneys.

Durable Power of Attorney: A Durable Power of Attorney is an important legal document by which you authorize another individual to step into your shoes and transact your personal and business financial affairs during your lifetime, without court supervision or approval. The person you appoint as your attorney-in-fact or agent should be someone you trust completely. Although your attorney-in-fact will have a fiduciary obligation to act in your best interest while serving as your power of attorney, that doesn’t always happen. Your attorney-in-fact will have the power to withdraw money from your bank accounts and brokerage accounts, mortgage and transfer your real and personal property, and take other actions which could be devastating financially. We call this to your attention because it is imperative that you take whatever precautions necessary under the circumstances to protect your interests.

The powers granted to your attorney-in-fact will be effective the moment you sign your durable power of attorney and will continue to exist for your entire lifetime, even if you become incapacitated, unless you revoke or terminate the durable power of attorney in a written instrument executed with the same formalities as the original instrument. You will have the right to modify, revoke or terminate your durable power of attorney at any time, provided you have the requisite legal capacity. The power granted by your durable power of attorney terminates automatically upon your death.

In late 2011, the Florida Legislature enacted a new power of attorney statute which effectuated many substantial changes in the law. These changes severely impact existing documents that were executed prior to such time. Even if your document itself is valid, there may be some provisions in the document that are not, or that need to be added to assist your estate planning goals.

If you would like to discuss having a Durable Power of Attorney prepared or make changes or update an existing Durable Power of Attorney, Contact Us to schedule a consultation with one of our experienced estate planning attorneys.

Designation of Pre-Need Guardian: Designation of Pre-Need Guardian is prepared and signed while you have capacity to provide evidence to the Court of who you want to be your guardian of your property and person, should you ever need one. Although this document is not legally binding on the Court, it is used as an evidentiary tool for the Court in appointing an appropriate Guardian. Your Designation of Pre-Need Guardian may be modified or revoked at any time, provided you have the requisite capacity.

If you would like to discuss having a Designation of Pre-Need Guardian prepared or make changes to an existing Designation of Pre-Need Guardian, Contact Us to schedule a consultation with one of our experienced estate planning attorneys.

Designation of Health Care Surrogate: A Designation of Health Care Surrogate is a document in which you select an individual to make health care decisions for you in the event you become unable to make those decisions for yourself (or under the new statute discussed below, if you choose for the document to become effective immediately), and authorizes your physician and other health care providers to disclose sufficient information about your condition and treatment to your surrogate in order for them to make a meaningful and informed decision on your behalf. Your Designation of Health Care Surrogate may be modified or revoked at any time, provided you have the requisite capacity.

Chapter 765 of the Florida Statutes was amended, on October 1, 2015. One of the most radical changes, indeed perhaps the only one, under the 2015 amendment to Chapter 765 is the ability to make a Designation of Health Care Surrogate effective immediately upon signing, rather than empowering the surrogate only when the patient’s physician(s) have determined that he or she is no longer capable of making those decisions.

If you would like to discuss having a Designation of Health Care Surrogate prepared or make changes to an existing Designation of Health Care Surrogate, Contact Us to schedule a consultation with one of our experienced estate planning attorneys.