The skilled and experienced attorneys at Alba & Straile PLLC represent clients in estate planning and probate matters. Establishing your estate plan is a sensitive task that requires detailed documents and sound recommendations. Our legal team understands the intimidating and delicate nature of planning for your family’s future. However, by facing the inevitable and documenting a precise distribution of wealth, our clients can rest assured that they have adequately protected their heirs.
What is Estate Planning?
An individual’s estate is the sum of their net worth and assets. It includes all properties, inheritances, stocks, bonds, and personal belongings. Estate planning is the process of an individual arranging for the transfer of assets to his or her beneficiaries after their death. Beneficiaries frequently include immediate family members, significant others, and charities.
Estate planning is also used to address matters involving an individual’s incapacitation, the guardianship of children, and matters relating to marriage or divorce, such as pre-or post-nuptial agreements and Will revision or revocation.
What is a Will?
A Will is a written, legal document that outlines how an individual’s estate will be distributed after death. Depending on the size of the estate and the number of beneficiaries, a Will can be simple or elaborate. Standard Wills focus on the distribution of an estate and can be changed or revoked at any time.
Under Florida Law, a Will must meet the following Requirements to be Valid:
- Individuals must be at least 18 years old, be of sound mind and body upon signing the Will.
- Individuals must sign in the presence of two witnesses and a notary.
- A probate court must approve the Will after death.
- Additionally, Florida law prohibits Wills from completely disinheriting surviving spouses, selling jointly owned property, or distributing inheritance to a Cuban national.
Changing or Revoking a Will
An individual can change or revoke their Will at any time before death. Codicils should be used to make formal additions or amendments to a preexisting Will to protect its integrity. A change can also occur automatically by the operation of law in some instances.
When creating your Will, clients are encouraged to appoint a Personal Representative, Power of Attorney, Health Care Surrogate, and Guardian for their children. Together, these positions provide united representation should you become ill or pass away suddenly.
When Considering Estate Planning, keep the following in Mind:
- Personal Representative. Appointed as part of the Will, this person executes the wishes of the individual making the Will. It is often a trusted friend or family member. Representatives should be aware of their duties before an appointment. They must be at least 18 years old and have not been convicted of a felony.
- Power of Attorney. A power of attorney can allow someone to manage assets for you. This person should be well informed of your ongoing financial matters and be comfortable taking on this role. He or she will have the ability to manage and transfer assets, deal with the IRS, make gifts, and amend trusts in your name. For these reasons, careful consideration should go into choosing a power of attorney.
- Health Care Surrogate. When you can no longer make decisions for yourself, a health care surrogate will hold the right to make health-related decisions for you. He or she will be authorized to consent for treatments as well as refuse them on your behalf. Understandably, this position comes with an incredible amount of responsibility. Therefore, great thought and discussions are recommended before appointing a friend or family member to this position.
- Guardianship of Your Children. The safety, health, and well-being of your children are often the cornerstone of an estate plan. Clients with young children are strongly encouraged to document guardianship. Losing a parent is unimaginable, but you can establish a safe and stable environment for your child by securing a guardian.
- Living Wills. Unlike standard Wills, Living Wills do not include property distribution. Instead, Living Wills specify what medical procedures should be used to prolong a life, should a person become incapacitated. Living Wills are signed in the presence of two witnesses, one of whom cannot be a blood relative or spouse.
Dying without a Will
When a person passes without a Will, known as intestate, their property is distributed by the state. Florida law is rather strict and only recognizes relatives as beneficiaries. It leaves friends, significant others, and charities out wholly. In addition, the intestate distribution processes are more time-consuming and complicated than that of dying with a Will.
Alternatives to Wills
Florida offers alternative estate plans to transfer assets after death instead of or in conjunction with a Will. Examples are:
- Irrevocable Living Trusts. Irrevocable trusts allow all assets to be transferred directly to a Trust for the benefit of heirs. These are often used to hold life insurance proceeds. They are effective immediately and not revocable or modifiable in most instances.
- Testamentary Trusts. Often created for minors, testamentary trusts are effective upon death and normally modifiable or revocable until then. A trustee is assigned to monitor the funds until the child is eligible to receive them.
- Payable on Death Accounts. Bank accounts can be made payable on death by simply completing a bank form, bypassing the standard probate process. The form dictates who will inherit the funds once the signer passes.
- Life Estate Deed. It is a simple transfer of property from one person to another. A life estate deed allows the original owner to continue to live in the house for the rest of their life. However, upon death, the residence is left directly to another person.
- Cash / Property Gifts Before Death. This is the most straightforward way to transfer assets. An individual can give away money, property, and personal items to family and friends before death.
- Life Insurance. A life insurance policy can be made payable to a specific beneficiary, such as a family member, instead of the deceased estate, thus avoiding the normal probate process. It is often a very effective means to support an heir immediately upon death, and to handle estate and funeral expenses until the court can complete probate.
The legal team at Alba & Straile PLLC values estate planning as a vital step in protecting your family’s future. Our practice understands the complexities associated with your unique estate plan. We are ready to guide you each step of the way. We represent clients throughout Florida. Contact our law firm at (352) 371-9141 to schedule a consultation.