Estate Planning FAQ
What is estate planning?
Estate planning involves the preparation of legal documents that outline how you want your assets to be managed and distributed after your death and in the event of incapacity. Without it, your property will automatically go to your next of kin. However, developing a detailed estate plan can ensure that your items go to the intended people and in the manner that you desire. It encompasses a range of documentation such as Wills, Trusts, powers of attorney, and healthcare directives to ensure your wishes are carried out effectively.
Why is estate planning important in Florida?
Estate planning isn’t just for the wealthy or elderly. It’s about ensuring your wishes are honored, your assets are protected, and your loved ones are cared for. In Florida, a thorough estate plan can:
Avoid or minimize probate
Reduce estate taxes
Prevent family disputes
Plan for incapacity
Designate guardians for minors
Our firm provides personalized estate plans to meet each client’s needs and goals, providing peace of mind for the future.
What documents are typically included in an estate plan?
Our estate planning lawyer can help you with a single document or an entire plan. Some of the options include:
i. Durable Power of Attorney – a document wherein you designate an agent or agents to handle your financial and legal affairs.
ii. Designation of Healthcare Surrogate – a document wherein you designate a health care surrogate to handle your healthcare related matters.
iii. HIPPA Authorization – an authorization wherein you name certain people who have authority to seek your medical records/information.
iv. Living Will –serves the purpose of allowing a hospital or other medical facilities to withhold giving extraordinary medical attention if you are in an “end-stage” condition.
v. Declaration of PreNeed Guardian – serves the purpose of naming a guardian of your person and/or property in the event a guardianship is required.
vi. Last Will and Testament - A legal document that outlines how your assets will be distributed after your death, appoints guardians for minor children, and names a personal representative to oversee the estate’s administration. The original Last Will and Testament must be deposited with the Clerk of Court in the county where the deceased person resides. When a person dies owning assets in their own name, probate is required. The Will must be admitted into probate so that the Court can distribute the assets to the beneficiaries listed in the Last Will and Testament.
vii. Revocable Living Trust - A legal entity created during your lifetime to hold and manage your assets. You can change or revoke it at any time so long as you have capacity. Upon your death or incapacity, assets in the trust are distributed according to your instructions without probate.
viii. Third party special needs trusts - Designed to benefit individuals with disabilities without jeopardizing their eligibility for government benefits. Funds are contributed by someone other than the beneficiary and managed by a trustee to supplement but not replace public assistance.
When is the best time to create an estate plan?
You should create an estate plan as soon as you become a legal adult, then update it every three to five years, or whenever a life change occurs such as the death of a loved one or the birth of a new family member. If you do not have an estate plan, the best time to create one is now. You never know when you will die or become incapacitated, and you want to have a solid plan in place when the time comes.
What is a Last Will and Testament?
A testator or testatrix (the Will creator) can use a Last Will and Testament to name beneficiaries, issue instructions for distributing assets, and indicate specific final wishes such as burial or cremation arrangements. It must also designate a personal representative responsible for handling probate and estate administration after the testator/testatrix’s death. Probate is the court-supervised process of settling a deceased person’s estate.
What are the requirements for a valid Last Will and Testament in Florida?
To be valid under Florida law, a Last Will and Testament must meet the following requirements:
The testator must be at least 18 years old and of sound mind.
The Will must be written (handwritten and oral wills are not accepted).
The testator must sign the Will, or direct someone else to sign in their presence.
Two witnesses must sign the Will in the presence of the testator/test and each other.
Witnesses should ideally not be beneficiaries to avoid potential conflicts.
What happens if my Last Will and Testament is invalid?
If a person creates an invalid Last Will and Testament, the probate court will treat the situation as if the individual died without a Last Will and Testament (intestate). This means the entire estate will be distributed according to Florida’s laws of intestate succession. Family members will inherit portions of the estate based on their relationship to the decedent and who survives them. For many people, this distribution does not align with their wishes, which is why it’s essential to create a valid Will with the help of an experienced attorney.
What is a Trust?
A Trust is a legal arrangement in which a person (the grantor) transfers ownership of assets to the Trust, which becomes a separate legal entity. The grantor can name themselves as trustee and maintain full control of the property during their lifetime. Upon the grantor’s death or incapacity, a successor trustee takes over and distributes the trust assets to the named beneficiaries. Trusts can offer significant benefits, such as avoiding probate, maintaining privacy, and providing more flexible asset management.
What is the difference between a Last Will and Testament and a trust?
A Last Will and Testament and a trust are both vital parts of good estate planning. While their functions may overlap, there are several important distinctions between the two.
A trust only manages assets and property that the grantor specifically titles under the trust. All other property is outside the trust’s control. A properly drafted Last Will and Testament accounts for any and all possible property which has not been titled under the trust.
Trusts can speed up the distribution of the assets to the beneficiaries, reduce taxes, and help avoid probate. However, improperly administered trusts can complicate trust administration.
Compared to Last Wills and Testaments, trusts are far more difficult to dispute in court.
A Last Will and Testament is always prepared alongside a trust in order to list the trust as a beneficiary of the testator or testatrix’s estate. This is done to ensure that any assets that were left out of the trust are distributed to the Trustee of the trust during the probate process or estate administration.
Although Last Wills and Testaments are more straightforward and usually less expensive than setting up a trust, a trust may sometimes be the best option, and is less expensive in the long run, as it has the advantage of avoiding the probate process if properly funded.
Do I need both a Last Will and Testament and a trust?
Our estate planning lawyer emphasizes that everyone should have a Last Will and Testament. On the other hand, creating a trust may not be strictly necessary under certain circumstances. Healthy, relatively young people with moderate assets often choose to create a Last Will and Testament but delay establishing a trust until they amass more property. Furthermore, according to Florida law, jointly owned assets or assets designating beneficiaries do not require probate.
What types of trusts are there for Florida residents?
i. Revocable Living Trust: The grantor can change the terms of a revocable trust at any time during their lifetime so long as they have legal capacity to do so, as with a Last Will and Testament. A revocable trust allows seamless asset management transfer in the case of the grantor’s disability or death.
ii. Irrevocable Trust: An irrevocable trust is almost impossible to modify after its creation. Irrevocable trusts can exclude assets from the grantor’s taxable estate so that the grantor does not have to pay taxes for any income that trust assets generate.
iii. Spendthrift Trust: A spendthrift trust restricts the access a beneficiary has to the trust’s principal funds. This type of trust can prevent uncontrolled spending and protect assets from creditors.
What is a power of attorney?
A standard Power of Attorney becomes invalid if the principal becomes incapacitated. In contrast, a Durable Power of Attorney (DPOA) remains in effect even after the principal loses capacity. This makes the DPOA a more effective tool for long-term planning, as it ensures the agent can continue making decisions and managing affairs during a period of incapacity or disability.
What is the Designation of Health Care Surrogate and why is it important?
A Designation of Health Care Surrogate is a legal document used to appoint someone to make medical decisions on your behalf if you become unable to do so. The surrogate can consult with doctors, manage treatment plans, and access medical records under HIPAA.
You may also choose to grant this authority even when you are not incapacitated, which can help relieve the burden of managing complex medical care in situations involving chronic illness.
It’s crucial to discuss your medical wishes with your surrogate ahead of time. If specific preferences aren't known, the surrogate must act in your best interest.
What should I bring to my initial consultation with an estate planning attorney?
To make the most of your first meeting:
Valid government-issued ID.
A list of your assets and liabilities.
Any existing estate planning documents.
Information about your family and beneficiaries.
Questions about your goals and concerns (e.g. asset distribution, guardianship, healthcare directives).
Being prepared allows your attorney to assess your situation accurately and tailor an effective estate plan.
What are the benefits of using a professional estate planning attorney?
Florida has strict legal requirements for estate documents to be valid. A professional estate planning attorney ensures:
Compliance with Florida law.
Documents are properly executed and notarized.
Your wishes are clearly outlined and legally enforceable.
You avoid pitfalls of DIY estate planning, such as invalid documents, unexpected tax issues, or lengthy probate.
Proper legal guidance minimizes risks, reduces family conflict, and protects your legacy.
How often should I update my estate plan?
It’s recommended to review your estate plan in Florida periodically, especially after major life events such as marriage, divorce, births, deaths, or significant changes in financial circumstances. Updates may also be necessary if there are changes in tax laws or if you move to another state.