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Estate Planning

Orlando Estate Planning Attorney

People should understand that estate planning is not just for the elderly or the rich, as every single person should take the time to develop an estate plan to help protect their assets and ensure that their desires are fulfilled should they die or become incapacitated. If you are seeking help with developing your own estate plan, you will want to work with an experienced Orlando estate planning lawyer.

Planning for smaller estates can be even more important than many larger estates in some cases, so you should take the time to ensure that you are working with an estate planning lawyer in Orlando who can help you achieve all of your goals. You should not wait until you are facing a crisis to begin developing your estate plan.

Basics of Estate Planning in Florida

Begin the estate planning process by gathering relevant information about your finances and family members, including any estate planning documents you already have, all of your bank and brokerage account statements, any life insurance policies, a full inventory of your assets, any beneficiary designations you currently have on your retirement or other accounts, and all existing contracts, such as prenuptial agreements. An estate plan will generally focus on some of the most common kinds of documents. 

Estate planning often involves creating all of what follows:

Last Will and Testament

Florida Statute § 732.501 establishes that any person who is of sound mind and who is either 18 or more years of age or an emancipated minor can make a will. A will directs the disposition of your property following your death and also appoints your personal representative.

Dying without a will is known as dying “intestate,” and Florida will be responsible for distributing your property according to a predetermined set of laws that essentially work down your family tree and give priority to the people most closely related to you. Such laws will also apply if a will is found to be invalid. 

People who want belongings to go to close personal friends instead of family members will want to make sure they not only have a will but also that it has been executed properly. Florida requires a person to sign their will in front of two or more credible witnesses, and all witnesses must then sign the will in front of the creator and in front of other witnesses.

You will want to have an Orlando estate planning attorney oversee the creation of your will because you may need help ensuring that your entire estate has been accounted for, all of your decisions are legally binding, and that you can navigate complex family issues. You can also benefit from working with a lawyer because they can lessen the tax burden on your loved ones.

Revocable Living Trust

Chapter 736 of the Florida Statutes is known as the Florida Trust Code. Florida Statute § 736.0402 establishes that a trust can only be created if:

  • The settlor (the person creating the trust) has the capacity to create a trust.
  • The settlor indicates their intent to create a trust.
  • The trust either has a definite beneficiary or is a charitable trust, a trust for the care of an animal, or a trust for some non-charitable purpose.
  • A trustee has duties to perform.
  • The sole trustee and sole beneficiary are not the same person.

A beneficiary will be definite if the beneficiary can be ascertained now or in the future, subject to any applicable rule against perpetuities. The power of a trustee to select a beneficiary from an indefinite class is valid, and if that power is not exercised within a reasonable time, the power fails, and any property subject to the power will pass to people who will have taken the property had the power not been conferred.

An Orlando estate planning lawyer is important in the creation of a trust because they can ensure that the assets in your trust grow and be protected. They can also assist in transferring assets to your trust.

Power of Attorney

A power of attorney is a legal document that will delegate authority from you to another person. The maker of a power of attorney is known as the principal and grants another person the right to act on the creator’s behalf as that person’s agent. 

The authority granted by a power of attorney will depend on the specific language of the document. A person can make the powers very broad or might limit the powers to certain specific acts.

A power of attorney must be signed by the principal, two witnesses to the principal’s signature, and a notary who can acknowledge the principal’s signature.

There are three kinds of powers of attorney in Florida: the limited power of attorney, the general power of attorney, and the durable power of attorney.

A limited power of attorney grants power for a specific act, while a general power of attorney provides much broader powers that are specifically authorized within the document. A durable power of attorney is perhaps the most common power of attorney and remains effective even when a person becomes incapacitated, although there are some exceptions and needs to contain specific wording providing power surviving the incapacity of the principal.

You will want to work with an Orlando estate planning attorney so that you know which kind of power of attorney you will need. Pre-printed powers of attorney often fail to provide the kinds of protection or authority people want, so you will need a lawyer’s help to ensure that your wishes are being satisfied.

Healthcare Advance Directives

Florida Statute § 765.202 is the state law establishing the designation of a healthcare surrogate, which is a written document that designates a surrogate to make healthcare decisions for a principal or receive health information on behalf of a principal. It must be signed by the principal in the presence of two adult witnesses, although a principal who cannot sign the document can, in the presence of witnesses, direct that another person sign the principal’s name as required. 

Designating a healthcare surrogate will allow a person to choose somebody responsible for all healthcare decisions regarding the principal’s healthcare during any period of incapacity. The document will not include medication or medical procedures to provide comfort care or alleviate pain.

People should be sure to work with an Orlando estate planning lawyer when developing a healthcare advance directive because you will want your document to be written plainly and clearly and makes your wishes obvious. An attorney can also ensure that your healthcare surrogate has language granting your surrogate the right to receive your confidential medical information because the information will otherwise be privileged under federal Health Insurance Portability and Accountability Act (HIPAA) laws.


When you have minor children, you will want to make sure that your estate plan contains guardianship provisions for your children. You need to be very cautious in your choice of a guardian, ensuring the person is willing to serve as a guardian and also that you are not choosing somebody who might be too old to be a guardian.

A trust can again be important for providing for children in the event of your death, and a trust can allow you to distribute money to your child at the age you feel will be most appropriate. Even when you have a trust and a trustee, you will still need a guardian of property to oversee any non-trust funds for the child.

Florida has two types of guardians, the limited guardian, and the plenary guardian. A limited guardian is a guardian who is appointed by a court to exercise the legal rights and powers specifically designated by a court order entered after a court has found that a ward lacks the necessary capacity to do some, but not all, of the tasks necessary to care for their person or property, or after the person has voluntarily petitioned for appointment of a limited guardian, while a plenary guardian is a person who is appointed by a court to exercise all delegable legal rights and powers of a ward after a court finds that a ward lacks the capacity to perform all of the tasks necessary to care for their person or property.

Florida Statute § 744.3045 also establishes the preneed guardian, which is a declaration that allows you to name a person to serve as guardian of your person or guardian of your property if you become mentally or physically disabled and can no longer manage your own affairs. It can also name the person who becomes a child’s guardian if the child’s last surviving parent dies or becomes incapacitated.

You will certainly want to have an Orlando estate planning attorney’s help in choosing a guardian. Without this designation, you run the risk of a probate court choosing a guardian for you. The court may select someone you do not want to serve as a guardian.

Call Us Today to Speak with an Orlando Estate Planning Lawyer

Are you trying to develop an estate plan in Florida? You will want to be sure that you are working with an experienced attorney who can help you navigate all of the many challenges that can arise when you are crafting your legal documents.

Upchurch Law represents clients not only in Orlando but also in the surrounding communities in Brevard County, Broward County, Duval County, Miami Dade, Ormond Beach, Palm Coast, Port Orange, St. Johns County, Tampa, St. Petersburg, and Titusville. You can call (386) 272-7445 or contact us online to set up a free consultation with our Orlando estate planning lawyer.

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