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Estate Planning

Port Orange Estate Planning Attorney

Serving All of Port Orange, Florida

When people take the time to create estate plans, they take the necessary steps to protect their assets and ensure that property stays within their family. Estate plans can often involve many different kinds of documents to ensure that all assets are receiving the necessary protection, so it is important for any person who needs help creating safeguards to hire a skilled Port Orange estate planning attorney.

While people can try to file legal documents on their own, doing so without legal representation can risk the effectiveness of the documents and can lead to additional problems later on. You will want to make sure that you have a lawyer evaluating your case and helping you create the right kind of documents you need to protect your assets.

Common Estate Planning Documents

You are probably aware that an estate plan will likely include multiple kinds of legal documents. What follows are some of the most common types that people may have to complete.

Last Will and Testament

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

Should a person die without a will, it is known as dying “intestate,” and Florida becomes responsible for distributing property according to a predetermined set of laws that essentially goes down a family tree and gives priority to the people most closely related to a deceased person. The same laws also apply when a will is determined to be invalid. 

People hoping their assets will go to their close personal friends instead of family members must be certain they have a will that has been properly executed. A person in Florida must sign their will in front of two or more credible witnesses, and all of the witnesses need to sign the will in front of the creator and in front of other witnesses.

Revocable Living Trust

The Florida Trust Code is found in Chapter 736 of the Florida Statutes. Under Florida Statute § 736.0402, a trust can only be created if:

  • The settlor (or 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 is definite if they 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.

Power of Attorney

A power of attorney is a legal document that delegates authority from one person to another person. The creator of a power of attorney is 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 depends on the specific language of a document. A person can make the powers very broad or may limit the powers to certain specific acts.

A power of attorney needs to be signed by a principal, two witnesses to a principal’s signature, and a notary who can acknowledge a principal’s signature. The three kinds of powers of attorney in Florida include the limited power of attorney, the general power of attorney, and the durable power of attorney.

A limited power of attorney will grant 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 probably the most common power of attorney and can be 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.

Healthcare Advance Directives

Under Florida Statute § 765.202, the designation of a healthcare surrogate is a written document designating a surrogate to make healthcare decisions for a principal or receive health information on behalf of a principal. The designation 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 allows 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.


Any person who has minor children will want to make sure that their estate plan contains guardianship provisions for their children. People need to be very cautious in their choice of guardians, ensuring that people will be willing to serve as guardians.

Trusts can be important for providing for children in the event of a death, and trusts can allow people to distribute money to children at the ages they feel will be most appropriate. Even when people have trusts and trustees, they will still need guardians of property to oversee any non-trust funds for children.

Florida also has two types of guardians, the limited guardian, and the plenary guardian. The 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.

Call Us Today to Schedule a Free Consultation with a Port Orange Estate Planning Lawyer

If you are in the process of trying to create an estate plan for yourself, do not try to figure everything out on your own. You will want to make sure that you speak with the team at Upchurch Law for help getting all of your estate planning needs right.

Our firm knows how complicated these types of documents can be for most people, so we will take the time to sit down with you and go through everything that will be needed. 

Call (386) 272-7445 or contact us online to take advantage of a free consultation with our Port Orange estate planning lawyer.

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