Florida estate planning 101

January 29, 2024
Florida estate planning 101

Florida Estate Planning 101

The purpose of an estate plan is to protect and preserve your property and ensure that it is distributed in the manner that you wish after your passing. If it is done properly, an estate plan can help minimize headaches for your loved ones during an already difficult time and ensure an orderly and efficient disposition of your assets. An estate plan is for your loved ones as much as it is for you.

“An estate plan is for your loved ones as much as it is for you.”

There are a lot of options when it comes to estate planning, from attorneys to do-it-yourself options. Here are the key components of an estate plan:

(1) Revocable trust. A revocable trust is a legal entity that you can create, fund, and manage during your lifetime. The most valuable aspect of a trust is that the property in a trust does not have to go through the probate process, which can be long and expensive. For most purposes, a revocable trust is a disregarded entity while you are alive, which means that the property in the revocable trust is essentially treated the same as it would be if it was titled in your name, while you are alive. When you die, the revocable trust becomes irrevocable.  At that point, a person that you appoint as the successor trustee will take over management of the trust property and will manage the trust assets in accordance with the directions you set forth in the trust. The assets will be managed by the trustee for the benefit of the people you name in the trust, known as the beneficiaries.

(2) Pour-over will. Even when you have a revocable trust, you should still draft a will, which is commonly called a "pour-over" will. The will typically states that any property remaining in your estate that was not already in your trust should be placed in the trust. This is an important step because there are circumstances where property is not properly funded into the trust and remains in the estate.  If you don't have a pour-over will, the Court will distribute the remaining property in accordance with the Florida intestate succession statutes.

(3) Durable power of attorney. This document allows you to designate someone to manage your financial affairs in the event you are incapacitated and unable to do so. If you do not have a durable power of attorney, if you become incapacitated, then the Court will appoint a guardian to manage your affairs. The guardianship process, like the probate process, can be long and expensive. Additionally, you will have little to no control over who is ultimately appointed as your guardian.  Rather, the Court will follow the legal process for guardianship set forth in Florida law.

(4) Health care surrogate designation. This is a document that designates the individual that you wish to make medical decisions on your behalf in the event you are incapacitated and unable to do so. This is important because it can help avoid family disputes.  A good example of what can happen if you do not have this document is the Terry Schiavo case.

(5) Living will (aka advance healthcare directive). This document allows you to specify to medical professionals what type of life-sustaining medical care you want and in what circumstances in the event you are incapacitated and unable to do so.

(6) Designation of pre-need guardian.  This is a back-up document in case there is an issue with your durable power of attorney or, for other reasons, the Court is legally required to appoint a guardian for you. The designation allows you to pre-select who you would prefer to serve as your guardian. The Court will still make the final decision under Florida law, but will consider your written preference.

Why Should I Have an Estate Plan?

According to the American College of Cardiology, 20% of all heart attacks occur in individuals under 40 in the United States. According to the American Heart Association, 10 to 15% of all individuals who have a stroke in the United States are aged 18 to 45. Thousands of younger adults are killed or seriously injured in car accidents every year. The bottom line is that the future is uncertain.  Death or incapacity can strike anyone, any day.  Having an estate plan in place gives you peace of mind that your affairs will be managed in accordance with your wishes in an efficient manner. The cost of having a competent estate plan created is likely far less than what it will cost your estate if you do not have one.  Furthermore, it protects your loved ones from added stress at a difficult time.

At Jason Quick Law, we are available to help you craft a bespoke estate plan that will accomplish your goals. Our initial consultation is free. We use a modern client portal and online payment options.

A summary:

  • An estate plan protects your assets and loved ones.
  • Everyone needs an estate plan.
  • You can't be too old or too your for a plan, but you can be too late.
  • A revocable trust forms the core of many estate plans.
  • Probate and guardianship are often expensive and protracted processes.
  • An estate plan is often less expensive than not having one.

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