No one knows when they may pass from this world into the next or the circumstances that may facilitate their death; thus it is necessary to create legal instruments to assist in the transfer of decision making responsibilities or distribution of personal property. An individual may die “intestate”, that is, without a written document stating their wishes for the division of property when they die or they may not have mentioned how to proceed with their affairs when and if they become physically or mentally incapacitated. The completion of a Last Will and Testament, Durable Powers of Attorney, Living Will and/or Revocable Trust should be considered to alleviate the stress and legal problems that comes from not having clear instructions during these times of crisis.
A “Living Will” is a document also known as an “Advance Directive” that informs your doctors that you do NOT want to be on prolonged life support if diagnosed as a persistent vegetate state (i.e. brain dead). It may include a designation of a health care surrogate or medical proxy, which is a person who will communicate with your physicians and make life or death decisions regarding your care when you are not able to. A “Durable Power of Attorney” is a document that vests decision making power in a person that you trust to handle your affairs, acting in your stead, if you are physically unavailable for whatever reason. This durable power of attorney may act on your behalf in any context outside the medical field and will, for example, open and close bank accounts, buy and sell property and do any other legal act on your behalf as if they were you. A “limited power of attorney” is a document created for a limited purpose and for a limited time, whereas the durable power of attorney does not expire unless it is revoked by the grantor.
A “Last Will and Testament” is a document subject to court review depending on the value of personal assets at death. The Last Will and Testament states how personal property is to be distributed upon death. A Last Will may be handwritten and signed by the testator’ however, any type written Wills must be notarized and witnessed. Generally, if you are married, a “reciprocal” Will is created where you leave assets to your spouse and vice versa. The Florida statutes do not allow a person to neglect transfer of property to a legal spouse or to minor children. A spouse and any minor child(ren) are entitled to at least one-half of a homestead property and a vehicle. If there are minor children, provisions should also be made for a guardian for the child(ren) if there are no biological parents able to care for the child. A guardian will take physical custody of the child and manage any assets or property the child receives as a result of the death of a parent as an heir.
A Revocable Living Trust is a document that creates a vehicle for the transfer of your property upon your death to your successor beneficiaries without court supervision. Generally married couples create a joint trust and then upon the death of the last surviving spouse, successor trustees who manage trust assets. Grantor trustees manage the assets as normal during their lifetime, however; upon their death, assets are transferred to the beneficiary, or heirs. Titles of property must be transferred to the name of the trust upon creating the trust. For example, this is done by Quit Claim Deed (QCD) for real property and title transfers for any other property.
It should be noted that there are some instruments or financial products that do not require the creation of a Will or Trust; and these items may not be subject to court review as they have their own pay on death clauses or beneficiary designations within the body of the document. These may include retirement/pension/annuity or 401(K) accounts, life insurance policies, bank accounts or brokerage accounts. A comprehensive plan for estate planning should be reviewed however to ensure that all types of property and assets are covered and accounted for in the event of a catastrophic event such as illness, incapacity, or death.
Individuals contemplating the completion of any of the above should provide the following to facilitate the creation of the above referenced instruments: the name of a Personal Representative/Administrator/Executor who is the person who will manage the distribution of your assets upon your death. It should be noted that the Personal Representative must be an individual who is related to you and resides within your state, IF the selected Personal Representative resides outside the state of Florida, s/he MUST be a relative. All the individuals selected to act in any capacity in an estate planning vehicle be it Living Will or Last Will and Testament should be someone in whom there is trust and confidence that the competent and necessary care shall be carried out.
Should you have any questions or need assistance in the completion of one, any or all of these documents, please do not hesitate to contact me by e-mail or phone for an appointment.