If you do not have an estate plan in Florida in place, you should remedy that situation immediately.
Florida’s Covid-related deaths are skyrocketing. In addition, you never know when you might become unable to create an estate plan. This inability may be gradual (such as dementia) or sudden (such as a car accident or Coronavirus hospitalization). Plus there is always the issue of sudden heart attacks, strokes and other accidents.
So what documents should you have in place? At a minimum, each Floridian should have the following documents: a Will, a Durable Power of Attorney and an Advance Directive for Health Care. Certain other life situations may also make a Trust desirable. Let’s review how each document can help you.
A Will is the part of your estate plan in Florida which provides where your money should go after you die.
It also will allow you to nominate a trusted person (the Personal Representative) to carry out your instructions. Without a will, if you have assets in your name, the state of Florida’s intestacy law will determine who gets your money. This may or may not agree with what you wanted. You might feel closer to one of your kids and want her share to be larger than her sibling’s. Or you might want to have specific bequests to certain beloved charities. Many people want to establish a pet trust to care for any furry family members you leave behind. If you do not do so in your will there is the possibility that your pets will be split up from one another or even euthanized. Putting your wishes down in writing is the best way to make sure that your assets go to the right persons, pets or charities.
A Durable Power of Attorney allows you to nominate a trusted friend or relative to act for you financially.
The nominee is called the Agent under power of attorney. In Florida, since 2011, any new powers of attorney must be immediately effective. You can no longer name an Agent to act for you only when you lack capacity. Your agent will have broad powers over your money. You should choose someone who is organized, level-headed, and good with managing money. Avoid someone who has been bankrupt, divorced or is frequently sued. (Also avoid anyone you believe may be facing any of those situations in the near future!) In addition to managing your finances, the Florida power of attorney statute provides for a number of optional “superpowers”. If you wish to enable your agent to exercise any of the superpowers, you must initial next to the line describing that power. Examples include gifting powers, or the ability to change beneficiary designations on your accounts.
An Advance Directive for Health Care is the part of your estate plan in Florida which allows another to make healthcare decisions
It also allows you to say in advance if you would not want aggressive treatment in certain end-of-life situations. Therefore, the Advance Directive is both a health care power of attorney and a living will. Your surrogate is expected to make the choices you would make for yourself if you were able. In Florida, you select whether or not to allow mental health issues to be controlled by your surrogate. You may also enable your surrogate to control driving when your surrogate believes it is no longer safe to do so. Other optional provisions include stopping nutrition and hydration, and whether you want to be an organ donor.
A trust might be necessary in certain situations.
For example, if you own real property in more than one state, you might wish to hold title to some of the properties in a trust to avoid having to do a probate in more than one jurisdiction. If one of your intended heirs is disabled and on SSI or other needs based benefits you should not leave money to them directly. You should leave their share in trust so that the trustee can supplement the disabled heir’s needs without displacing the government benefits they are receiving. Another reason you might want a trust is to help you avoid probate. If a trust is created and properly funded, your assets could be passed on through a trust administration rather than a probate. In addition to what I have listed here, there are many other special situations that require a certain type of trust. Some are for asset protection in the event you need Medicaid to pay for a nursing home stay. Others provide for support for your demented spouse in case you die first.
If you think you might need a trust, you should discuss the issue with an experienced estate planning/elder law attorney. Always feel free to call us at 239-434-8557 to get a free telephone evaluation about your estate planning needs.