Estate Planning and Trusts and Probate
Wills
WILLS AND OTHER ESTATE PLANNING DOCUMENTS
For most individuals, a basic estate plan includes the following documents:
* Last Will and Testament
* Family Power of Attorney
* Living Will
* Health-care Surrogate Designation
LAST WILL AND TESTAMENT
What a Will Allows You to Do:
You can name the person or persons who will act as personal representative (formerly known as executor) to administer your estate.
Subject to certain rights that your spouse may exercise, and subject to certain homestead rights that may exist, you can decide who will receive your probate assets upon your death.
You can leave a list setting forth recipients of certain tangible personal property that you own. This list can be changed periodically without having to re-execute your will.
If you have minor children, you can name the person or persons who will act as the guardian of your child or children if the other parent is deceased.
If you do not want a beneficiary to receive his or her request immediately upon your death, a trust can be established to administer the funds or assets pursuant to terms that you establish. Such trusts are commonly used with respect to minors and with respect to children not capable of managing their affairs.
If you have a taxable estate, you can establish trusts or other estate planning provisions that may allow you to reduce the estate tax that would otherwise be due upon your death.
What a Will Won't Accomplish:
A Last Will and Testament will not control the transfer at death of property held by a husband and wife as tenants by the entirety upon the death of a first spouse. Except under certain very limited circumstances, such property will pass upon death automatically to the surviving spouse. Remember, however, that not all property owned by a husband and wife is owned as tenants by the entirety.
A Last Will and Testament will not control the disposition of properties held under a joint tenancy with right of survivorship.
A Last Will and Testament will not, unless the estate of the decedent is named as the beneficiary, control the transfer of property controlled by contractual provisions. Such assets could include retirement plans, 401K plans, life insurance policies, payable on death accounts and other assets where the transfer ownership is controlled by contractual terms.
Why is the form of ownership so important?
As noted above, the form of ownership will determine whether your will or another contractual document controls the transfer of property upon your death. Property can be held, among other forms, in an individual capacity, as a tenancy by the entirety, as a joint tenant with right of survivorship, as a tenant in common, as a trust interest or as a community property asset. In developing your estate plan, it is important that you understand the manner in which your assets are held or titled and the consequence of that particular form of ownership.
FAMILY POWER OF ATTORNEY
What Benefit is a Power of Attorney?
A power of attorney allows you, the “Principal,” to appoint any one individual, usually a spouse or child, to make financial and other decisions for you. The terms of a power of attorney can be as broad or as limited as you desire.
If you should have a stroke or other illness that incapacitates you, a power of attorney will allow your designated attorney to continue to manage your affairs without the need for the establishment of a legal guardianship and without court involvement.
The power of attorney is only effective during the Principal's lifetime. Upon the death of the Principal, the power attorney terminates. Further action, if required, must be undertaken by the personal representative of the Principal’s estate.
A power of attorney is a powerful document and should not be granted under uncertain circumstances.
A LIVING WILL
What is a Living Will?
A living will allows you to set forth your intentions concerning the providing or terminating of medical procedures when you have a terminal medical condition. It is considered a health-care advance directive because it is made by you before there is a need for the document. In other words, while you are of sound mind, you can set forth your intentions as to the types of medical procedures you desire if you are faced with a terminal medical condition. A recommended form for a living will is set forth in the Florida Statutes.
HEALTH CARE SURROGATE DESIGNATION
What is a Health Care Surrogate Designation?
A health-care surrogate designation allows you to appoint another individual to make medical decisions for you if you cannot make a decision yourself. A recommended form for a health care surrogate designation is set forth in the Florida Statutes.
Attorneys
Charles L. Hoffman Jr.
Braden K. Ball Jr.
Thurston A. Shell
Jill K. Satterwhite