It is a great idea for every Florida resident to carry out effective estate planning to ensure their wishes are carried out after their death and that their assets are properly managed by someone they trust when they become incapable of handling things on their own. To this effect, Florida estate planning documents should include the following:
- A will
- A trust
- Financial power of attorney
- Healthcare surrogate
- Living will
A will, formally called a Last Will and Testament, spells out your wishes concerning how you want your assets disposed when you die. In the will, you name your heirs, and allocate assets to them in clear and specific terms to avoid ambiguity. You should also name an executor who would be responsible for carrying out your wishes in the will. A will Puts your mind at rest that your wishes would be effected after death, and that those who matter to you would certainly be the ones who inherit your possessions.
Key elements of a Florida Will
- Transfers only assets solely owned by the testator
- May be used for guardianship for minors
- Must maintain all requirements for validity with respect to Florida state laws.
- Must be filed to the probate court, accepted as valid by the court, before the instructions can be implemented
- Assets with beneficiary designations such as 401(k)s and insurance proceeds should not be addressed with a will.
A trust is an agreement between the trust creator (trustor) and the trustee who manages the trust assets for the benefit of the beneficiary. A trust is dormant until it is funded. The assets take up the name of the trust, and so pass to beneficiaries outside probate, and even while the trustor yet lives.
There are basically two kinds of trusts viz.: revocable and irrevocable trust.
Revocable living trust: also simply called a living trust, this kind of trust can be changed or canceled after being established. For this reason, the assets are not assumed to be entirely the property of the trust. The trustor can name himself as the trustee and utilize the trust assets for his own benefits, but must name a successor trustee who would step in at the trustor’s death to manage and transfer the assets to the beneficiary. The trustee, during the trustor’s incapacity, will also act as the guardian, thus preventing court guardianship proceedings.
Key elements of a living trust
- Offers probate avoidance but not full tax avoidance
- Assets can be transferred during the trustor’s lifetime
- Effective for disability planning.
Irrevocable trust: An irrevocable trust is the permanent owner of the assets it holds, meaning such assets can never be taken out nor added to by the trustor; and neither can the trust be cancelled. Since the assets no longer belong to the trustor, they will pass to the beneficiary tax-free and beyond the reach of creditors.
Key elements of an irrevocable trust
- Full Asset protection (tax and creditor avoidance)
Financial power of attorney
Although no one wishes disability upon themselves, we cannot shy away from its likelihood of occurring. When that happens, then who would be in charge of your business? Who would handle your bills, manage your assets and handle financial transactions on your behalf? If you do not plan for that now that you are sound, the court may have to step in and appoint someone undesirable when you become incapacitated.
To address this, it is imperative you include a financial power of attorney to your estate planning forms. This document allows you name someone you trust who would step into your shoes and handle your financial and business affairs when you suddenly become disabled. There are also limited and special financial powers of attorney which offer limited authority to your fiduciary. A durable financial power of attorney may only be revoked by you when you regain soundness.
Like the financial power of attorney, the healthcare surrogate is a provides you with the opportunity to appoint someone after your heart who you trust to make medical decisions — such as you would desire — for you during incapacity. It is also known as a healthcare power of attorney or healthcare proxy.
Not to be confused with a last will, a living will only spells out your wishes regarding medical attention during end-of-life. What kind of treatment would you like or dislike? A living will is nullified at death.
Get help from an estate planning lawyer
Having known the required documents in a Florida estate plan, it is time to begin implementation. Kindly contact a Florida estate planning attorney for legal, professional and personalized assistance in creating that estate plan which covers all your needs.