What is Florida estate planning?

LEARN HOW FLORIDA ESTATE PLANNING CAN HELP ENSURE YOUR PROPERTY IS PROTECTED BEFORE AND AFTER YOUR DEATH.

Estate planning allows you to manage your assets and finances both before and after you pass away. Florida Estate planning is the process of creating legal documents that outline how a person’s property should be handled after death or while incapacitated. It is a great tool for anyone who wants to map out a proper legal plan for the distribution and management of his/her estate without allowing the courts to get involved in the process. Florida estate planning documents such as a revocable living trust can help avoid unnecessary costs and delays associated with probate. Estate planning gives you peace of mind that someone you trust is in charge of your property until the property is fully distributed among your beneficiaries.

Here are some of the key Florida estate planning documents:

• A Florida will, also called a last will and testament, to leave your estate to your beneficiaries and appoint a guardian for your minor children
• Florida revocable living trusts also referred to as living trusts, to transfer legal ownership of your assets to a trust while you are still alive.
• A Durable Power of Attorney referred to as a DPOA, to appoint an agent to manage your estate, legal, and financial affairs.
• Florida Living wills, to outline your end-of-life healthcare preferences in case you become incapacitated.
• Medical Health care directive (MHCD), to name someone that you trust as your agent to take both critical and general healthcare decisions on your behalf.

Let’s take a quick look at Florida estate planning documents.

LAST WILL AND TESTAMENT

A Florida last will and testament is a legal document that allows a testator (the person who’s making the will) to set out final wishes and directions for the distribution of their assets upon their death. Creating a valid last will and testament overrides the provisions of the Florida inheritance laws. Every will executed in Florida will have to be administered upon the death of the testator through a court proceeding called probate. In a last will and testament, a testator (known as the person creating the will i.e. the will maker) will designate and appoint someone he/she trusts as the personal representative (referred to as an executor) to administer the probate, collect assets, manage estate expenses, and settle debts and taxes against the estate. The testator can also appoint a guardian for his/her minor children should both parents die before the children turn 18 years. A last will and testament can be amended any number of times during a testator’s life using a document called a codicil. For a will to be valid under Florida law, it must be properly executed in the presence of at least two witnesses, among other legal requirements. The laws regarding valid execution and witnessing of a last will are set out in Florida Statutes §§ 732.501 through 732.504.

REVOCABLE LIVING TRUSTS

The main purpose of creating a revocable living trust is to avoid probate court and guardianship court. It transfers a trustor’s legal ownership of his/her property into the name of the revocable living trust. There are typically three parties to a living trust: the trustor, trustee, and beneficiaries. Trustor also known as the settlor is the person who creates the trust agreement, whereas the trustee is the person who is designated to hold and manage the trust property. Beneficiaries are the persons who are entitled to benefit from trust property upon the death of the trustor. In a revocable living trust, the trustor can choose to become all three parties.

• 736.0402 of Florida Statutes governs the requirements to create a valid revocable trust. To make a valid revocable living trust in Florida, the following requirements must be fulfilled.
•       The trust maker must have the capacity to make the trust.
•       The trust document must state the intention of making the trust.
•       The Trust documents must identify designated beneficiaries.
•       It must set out the duties of trustees.  
•       The same person cannot be the sole trustee and sole beneficiary.

A living trust can be amended or canceled by the trustor at any point during his lifetime. However, a revocable living trust becomes irrevocable upon the death or incapacitation of the trust maker. Once the trustor dies, the terms of the living trust become permanent and you can no longer add or remove assets from the trust.

DURABLE POWER OF ATTORNEY (DPOA)

Florida durable power of attorney is governed by §709.08 of the Florida Statutes. A durable power of attorney is a powerful estate planning tool that allows a person to grant an agent the authority to manage and make important decisions concerning one’s assets, finances or health care in the event of temporary or permanent incapacitation. The person granting the authority under a DPOA is known as the principal and the agent is known as the attorney-in-fact.  (Note the term attorney-in-fact does not mean the person is a lawyer).  The agent holding a durable power of attorney can pay bills, manage finances and all other vital areas of life should the principal become incapacitated. An ordinary power of attorney expires the moment the principal becomes mentally incompetent. However, a durable power of attorney remains in effect even if the principal becomes incapacitated due to an illness or accident. It is worth noting that all POAs including durable POAs expire when the principal passes away and the agent will no longer have the legal authority to control the principal’s affairs.

LIVING WILLS

Unlike a last will and testament which specifies how a person’s property should be distributed upon death, a living will is a type of legally binding advanced directive that outlines a person’s end-of-life preferences such as life-prolonging medical procedures, organ donation, or CPR preferences in case the person is unable to communicate them. A person who creates a living will can choose to forgo all death-delaying procedures in the event of a terminal condition such as becoming brain-dead or breathing with the support of a machine. A living will becomes effective only when the person goes into a permanent vegetative state. To be a valid living will it must be signed in front of two witnesses at least one of whom is neither a blood relative nor the spouse of the maker. Florida living wills are discussed in Florida Statutes §§ 765.301 through 765.303.

MEDICAL HEALTH CARE DIRECTIVE (MEDICAL POA)

A Medical Health care directive or a healthcare power of attorney also referred to as a Designation of Health Care Surrogate in Florida is a specialized type of medical power of attorney where a person appoints a healthcare surrogate as an agent to make healthcare decisions in the event the person signing the power of attorney becomes incapacitated and incapable of making medical/healthcare decisions for oneself. Unlike a living will, medical POAs can enable a surrogate to make decisions regarding medication, treatment options, surgery, end-of-life medical treatments, and general medical care. In Florida, to designate a health care surrogate you must complete a Florida Medical Power of Attorney form.  In this form, you will choose who will serve as your Medical POA (agent) and what powers you designate your agent to exercise. It is imperative that you appoint someone trustworthy as your medical POA who is able to make the right healthcare decisions for you in the event you are unable to make them for yourself. Florida Statutes § 765.202 requires a health care advance directive to be signed by the principal in the presence of two adult witnesses at least one of whom is not a blood relative or his/her spouse.

GET EXPERT ESTATE PLANNING ADVICE TO PLAN YOUR FUTURE.

The best place to start planning your estate is with an experienced and skillful Florida estate planning attorney. Our law office will assist you with the difficult decisions that lie ahead and support you every step of the way in planning your estate. If you’re thinking about creating an estate plan in Florida, we are here to help you get started.  Contact our office for a consultation at (727) 424-1464.