The Basic Florida Estate Plan
At Horowitz Legal PLLC, we take time to customize an estate plan which will fit the unique situation of each of our client?s. However, at a minimum, the vast majority of clients at least need the following documents: Revocable Trust or living trust, Last Will and Testament or “pour over will” and a full set of advance directives (durable power of attorney, health care surrogate, and living will). Of course each client is different and many will require vastly more complicated estate planning as there are many factors which influence the implementation of a proper estate plan.
Revocable Living Trust
A revocable trust is generally the centerpiece of an individual’s estate plan. A revocable trust is a document created by you to manage your assets during your lifetime and distribute the remaining assets after your death. The person who creates a trust is called the grantor or settlor. The person responsible for the management of the trust assets is the trustee. You can serve as trustee, or you may appoint another person, bank or trust company to serve as your trustee. The trust is revocable since you may modify or terminate the trust during your lifetime, as long as you are not incapacitated. Upon the grantor’s death, the designated successor Trustee will step into the role and administer the distribution of the grantor’s assets.
A revocable trust is similar to a Will and serves as the grantor’s primary estate planning vehicle by directing the distributions of assets upon the grantor’s death. In the event the grantor should become incapacitated, the successor Trustee can immediately step in and act on the grantor’s behalf to manage the assets. Upon the grantor’s death, the successor Trustee will manage and distribute the assets of the trust to the beneficiaries named in the trust. However, and unlike a Will, a the trust has a separate legal identity and therefore assets passing from the Trust avoid the probate process saving significant expenses associated with probate. Further, a trust is a private document and does not have to be deposited with the court.
Last Will & Testament
A Will, or Last Will and Testament, is the legal document by which an individual (also known as the Testator) expresses his or her final wishes for the management of his or her estate. This includes the distribution of assets, guardianship for minor children and burial instructions. Without a properly executed Will, a person is deemed to die intestate and his or her assets will be distributed pursuant the state?s intestacy statute.
Practically speaking in Florida, intestacy means that all of your assets will be distributed pursuant to the Florida statute, regardless of your intent. Additionally, under intestacy your Personal Representative or Executor, will be appointed by a judge.
Intestacy becomes extremely problematic if you die and have a minor child, as that child’s guardian will also be determined by a judge. The Court will base its decision on the best interests of the child, a vague standard with potentially catastrophic results such as disputes among relatives.
Although a Will can adequately provide for the distribution of assets upon your death, it does not sufficiently provide for your necessary care in the event you become incapacitated. The other major drawback of a Will in comparison to a Revocable Trust is that it must proceed through the costly and public probate process. Once a Will is probated, it becomes a public record and can be viewed by any member of the public.
Durable Power of Attorney- A DPOA appoints a person to handle your personal financial affairs in the event you become incapacitated and thus avoids the necessity of a formal guardianship proceeding.
Health Care Surrogate- This document appoints a Health Care Surrogate to make medical decisions on your behalf in the event you cannot do so. If you become incapacitated, this person will be permitted to make decisions as to your consent for medical treatment and the administration of medication.
Living Will- It is a written or oral statement of the kind of medical care you want or do not want if you become unable to make your own decisions. It is called a living will because it takes effect while you are still living. This document is usually limited to very specific decisions including the provision or withholding of life-sustaining procedures, artificial nutrition, experimental medical treatment, and organ donation.