Q: What is an estate plan?

​An estate plan is a series of legal and financial documents that allow you to declare what you want to happen with your care, your family, and your "stuff" if you are unable to make decisions on your own because of mental incapacity during life and following your death. For most people, the “plan” usually encompasses

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• a Will or a Revocable Living Trust

• Durable Power of Attorney

• Health Care Surrogate

• Living Will

 

It can also include pay on death designations, life insurance policies and certain deeds transferring property called Enhanced Life Estate (“Lady Bird”) Deeds.

 

Q: Can you have some aspects of the plan without all of them?

 

Yes, you can have a will without the other documents; however, if you desire to take control over your future you should have all of the primary documents listed above. They are independent documents. Our firm packages them together because they are all critical in planning for life's contingencies, be it disability, end-of-life health and financial decisions and post-death family care and finances.

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WILL

​Q: What is a will and what does it do?

 

A will, also known as a Law Will & Testament, is a document that allows you to identify who you want to manage your property after your death (Personal Representative), as well as who you want to take care of any minor or special needs’ children, both the children and the property they inherit. A will also allows you to direct how, when, and to whom you want your property to transfer. Without a will, a Judge will ultimately make the final decisions on these matters.

 

Q: Who needs a will?

 

Anyone who wants to have a say in what happens with their property after they pass. Families with young children, special needs’ children and blended families should take special care to document their desires to protect their children.

 

Q: Can my spouse and I get a joint will?

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No. Florida law began prohibiting joint wills for spouses in 2001. If you have a joint will executed before 2001 or from a different state, it may be valid but does not prevent your spouse from voiding it.

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Q: When do I need to update my will?

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You should update your will or create a new will if you have a significant change in life circumstances, such as divorce, marriage, have children, or want to change some aspect of your current will. Most wills are drafted with flexibility, utilizing contingent Personal Representatives and beneficiary schemes, so you do not have to change a will if someone dies or you have subsequent children. You do not necessarily need to update your will if you relocate.

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Q: What happens if I die without a will?

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Dying without a will is known as dying intestate. Because you did not specify who will manage your estate or to whom you want your assets to transfer, a Judge will rely on the Florida Statutes to determine to whom your assets will pass. This is really important to understand, because it may not be who you want!

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Q: Can I just write it down for my loved ones without making it a formal process?

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Not necessarily. Just writing down your assets does not give certainty that (1) you authored the note, (2) someone hasn’t interfered and changed it, and (3) whether you were mentally capable (competent) to make those decisions when you did. This is why the Florida Statues require wills to be signed by the testator (client) and witnessed by two, uninterested individuals, over the age of 18. Our firm follows the better practice of notarizing all three signatures to minimize the chance of impropriety or contest. This is called a self-proving affidavit.   

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Q: Can a will help me avoid probate?

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No. In fact the will is what guides the Judge in making decisions about how to handle the estate after you pass. It is effectively the roadmap for the Judge and your Personal Representative to follow in carrying out your wishes.

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REVOCABLE LIVING TRUST

​Q: What is a revocable living trust?

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A revocable living trust is a more complex estate planning tool that allows you to control your assets both during life and after death. A revocable living trust, like a will, allows you to identify family make-up, who is in control of the assets (Trustee), which beneficiaries will inherit, and how beneficiaries will inherit. You maintain control and have more flexibility in protecting your assets.

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Q: How does a trust differ from a will?

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 A revocable living trust is “living” in the sense that it is fully operational during your life, while a will is only utilized during probate proceedings after your death. A trust can also do the following:

• avoid probate

• maintain privacy, since the trust document is not filed with the court as wills are

• minimize administration costs for your loved ones

• minimize the time between your death and distributing assets to your loved ones

 

Q: Who needs a trust?

 

It depends on each family’s circumstances. Our firm typically recommends revocable living trusts for blended families, couples in which one spouse is not a U.S. citizen, families who are concerned about how their beneficiary will utilize their assets due to dependency or addictive behaviors, families with assets in multiple states and families who want more control over how assets are distributed.

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POWERS OF ATTORNEY

​Q: What is a power of attorney and what does it do?

 

A power of attorney allows you to give a person, your “agent,” authority to manage your property, during your life, in the event you are unable to make decisions or take control on your everyday affairs due to cognitive decline or unavailability (such as being out of the country).

 

Q: What types of actions can my agent take?

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Typical actions include managing financial assets, communicating with the VA or Social Security, paying bills, managing tax preparation, entering into contracts or lawsuits on your behalf, and managing your digital accounts (online banking, phone/internet, etc.). 

 

Q: How long do they last?

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Your power of attorney is only valid during your life. It becomes void when you (1) revoke it and deliver notice to your agent or (2) die.

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Q: Why do you recommend a power of attorney?

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We recommend executing a durable power of attorney as part of long-term care planning while you are still of sound mind. Car accidents or acute illnesses can happen at any moment. If you do not have a durable power of attorney in place and lose capacity, you will not be able to access critical services or assets until you petition the court to appoint a guardian over you and your assets. Guardianship cases are incredibly expensive, cumbersome, require court oversight, and lack privacy for the individual needing the guardianship. A power of attorney is the simplest and cheapest way to avoid guardianship.

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HEATLH CARE SURROGATE​

Q: What is a Health Care Surrogate

 

A health care surrogate allows you to name an individual to receive medical information about you and make medical or healthcare decisions on your behalf if you are unable to meaningfully communicate your desires. It also allows you to specify desires regarding specific medical remedies, organ donation, and blood transfusions.

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LIVING WILL

​Q: What is a living will?

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A living will is a statement about your desire to withdrawal or withhold life-prolonging procedures if you are (1) incapacitated, meaning you have no ability to communicate your desires regarding health care, and (2) have a terminal condition, an end-stage condition, or are in a persistent vegetative state and there is no reasonable medical probability of recovery. 

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Q: How does it differ from a Health Care Surrogate?

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A living will is just a statement about your desires, while a health care surrogate names someone to make the final decision regarding your care. The living will removes the burden from the surrogate of making difficult end-of-life decisions and declares your intentions without your surrogate having to feel pressure, guilt, or shame from others who may not agree.