ESTATE DOCUMENT PREPARATION FOR NON-TAXABLE ESTATES
One of the most common reasons that someone will need a lawyer in their lifetime is to prepare various estate documents including but not limited to a Last Will and Testament, a Revocable Living Trust (read more about revocable living trusts in Florida here), a Family Trust, a Last Will and Testament with testamentary trust and guardianship provisions for minor children, etc. However, these documents only come into play after someone dies. To do complete estate documents, you should consider, and we also recommend the preparation of living wills, durable powers of attorney, health care powers of attorney/surrogate/proxy designations and HIPAA affidavits. When someone dies with a will, we can handle the probate proceeding, which is a court involved process to wind up someone’s affairs. We can likewise handle trust administration. Further, there are also way of avoiding probate that legal counsel can assist with.
As there are far fewer taxable estates due to increases in the Estate Tax Credit over the couple of decades, we limit our representation to non-taxable estates and uncontested probate matters.
A will is a colloquial expression for a Last Will and Testament. This document defines who someone wishes to be a beneficiary/heir as well as a fiduciary/personal representative, in other states referred to as either an executor or executrix. A will can be complex or can be quite simple. Wills discuss funeral arrangements and preferences. Wills discuss an age of majority or age of inheritance for beneficiaries. If no ages are specified, in Florida, the age of majority is 18 years old. When someone has minor children, a Will should properly contain testamentary trust provisions as well as guardianship provisions, both for Guardian of Property and Guardian of Person. These can also be one in the same person or different individuals. Wills can include specific bequests within the will itself regarding real estate and cash. However, if you do so via a separate writing provision, another Florida avenue of devise, while real property and cash are usually excluded, the separate writing is good for other property such as a coin or stamp collection, a piece of artwork, a vehicle, jewelry, etc. Wills also should contain general bequest provisions in terms of percentage interests in an estate (i.e.-50%) and is preferred over lump sum bequests.
Should someone wish to exclude or write out a family member, friend, such should be done expressly within a will, and properly through the guidance of an attorney. We can help.
As laws vary from state to state, there is no ‘one size fits all’ regarding the preparation of wills in Florida. When we prepare wills at our firm, every will is unique. Also, there is a legal requirement that Florida wills need to be executed by a testator/testatrix, the subject of the will, before 2 subscribing witness who are over the age of 18 years old and not a felon and it is preferable to have a Florida Notary to make the will a self-proving document.
A living will is a legal document in Florida that is conditioned upon the principal having an end-stage medical condition, a terminal condition or being in a ‘persistent vegetative state’ with 2 concurring doctors concluding that there is no medical probability of recovering from that condition. In other words, it allows someone to determine how they will be able to die with dignity and peace when there is no other hope for recovery. Then, under those conditions, to oversimplify the situation, it allows a person to receive or decline various heroic medical measures. Also, if one wishes to be an organ donor, such can be included in this document. Like with wills, each state has different requirements and laws regarding living wills/advance directives and that is why an attorney should be consulted and these documents should be professionally prepared and executed while you are healthy.
Durable Powers of Attorney
A durable power of attorney is a legal document can be part of your estate documents meant to allow someone else to step into your shoes to make both legal and financial decision for you. It is also meant to assist avoiding an adult guardianship or conservatorship should you become incapacitated. We went through a massive change in the law approximately a decade ago. For this reason, a durable power of attorney in Florida is an important but potentially dangerous document. The danger lies in an agent/attorney in fact having a present ability to act on your behalf for monetary/financial/real estate/business and contractual matters immediately upon signing, rather than after you become incapacitated. There are many nuances in the relatively new Florida Durable Power of Attorney Act and for these reasons you should discuss this with an experienced attorney.
Health Care Surrogate
A health care durable power of attorney or healthcare surrogate designation is a similar document to a living will/declaration but contains far broader powers. The person that one chooses to make medical/healthcare decisions for them may be someone with medical or nursing expertise or one that you trust to make those decisions for you in your best interests…someone who knows you and your wishes well. Discuss your thoughts and concerns with your legal counsel.
HIPAA is a Federal Law/Privacy Act dealing with your medical records. Your records are otherwise private and confidential and protected under Federal law. However, for someone to make healthcare decisions for you when you cannot, via a health care durable power of attorney/proxy or even via a living will, a properly drafted HIPAA authorization should accompany those legal documents. We can help with this.
When beneficiaries/heirs are under the age of majority, they technically cannot inherit property outright in the state of Florida. For this reason, when someone has minor children, or other minor beneficiaries, we prepare wills that contain testamentary trusts to account for such minors. Additionally, if the principal in a will believes that the certain beneficiaries do not have the maturity/capacity even if over the age of 18 years old to handle outright bequests, a testamentary trust can extend the distribution of such money to other later age milestones such as 1/3 at age 21, another third at age 25 and the balance due at age 30. Discuss any concerns with your attorney prior to the drafting of wills with testamentary trusts.
Guardianship Provisions for Minor Children
In Florida there are two types of guardianship in general…these are guardianship of person and guardianship of property. Guardianship of person is the old question of who raises the minor child/children when you and/or your spouse are no longer around. Guardian of Property or Trusteeship provisions address who is going to take care of the assets/finances for the heirs while they are either below the age of majority or under the age/ages the principal designates within a will. Guardianship provisions are extremely important in terms of raising children if you cannot. Discuss these and all estate matters with your attorney. We can help.
Uncontested probate is when someone dies with (testate estate) or without (intestate estate) a will and all interested parties are on the same page. It is a court supervised process of winding up someone’s affairs. Probate, in its simplest form, can be an estate process without administration if the value is de minimis upon death, a summary probate or an expedited type of probate if an estate is less than $75,000.00 or a full and formal probate if over $75,000.00. As the probate process involves the courts, it is highly recommended to have an attorney help family members of the decedent navigate this process.