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Estate Planning

Titusville Estate Planning Attorney

A majority of people do not invest much time in estate plans because they think that such concerns only apply to the most wealthy among us, but the truth is that every single person should take the time to construct an estate plan because virtually everybody has concerns about what will happen with their property when they die or become incapacitated. Many people can also have strong feelings about what directives should be taken should they be unable to communicate their wishes, and a Titusville estate planning lawyer can help people navigate complex situations.

You do not want to wait for some crisis to arise before you begin developing your estate plan because it can be too late by then. Take the time now to begin evaluating what you will need and what is important to you so you can achieve peace of mind in knowing that your interests will be protected.

Common Kinds of Estate Planning Documents in Florida

An estate plan can involve many different kinds of documents, and people will usually begin the process by collecting all of the information about their personal finances and family members. It will also be beneficial to collect certain kinds of documents people may already have, such as statements relating to bank accounts, life insurance policies, prenuptial or postnuptial agreements, and complete inventories of assets.

Some of the most common kinds of estate planning documents in Florida include what follows.

Last Will and Testament

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

Should a person die without a will, they will die “intestate,” meaning Florida becomes responsible for distributing their property according to a predetermined set of laws going down a family tree and giving priority to the people most closely related to a decedent. Intestate laws also apply when a will is determined to be invalid. 

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.

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 (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, and the sole trustee and sole beneficiary are not the same person.

A beneficiary is definite when the beneficiary can be ascertained now or in the future. A trustee has the power to select a beneficiary from an indefinite class. If that power is not exercised within a reasonable time, however, the power will fail, 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 individual. The maker of a power of attorney is a principal and grants another person the right to act on the creator’s behalf as that person’s agent. 

A power of attorney must be signed by a principal, two witnesses to a principal’s signature, and a notary who can acknowledge a 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 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 one of the most common powers of attorney in Florida and is 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

The state law establishing the designation of a healthcare surrogate is found in Florida Statute § 765.202, and a 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 document 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 lets somebody choose another person responsible for all healthcare decisions regarding the principal’s healthcare during any period of incapacity. 

Guardianship

People who have minor children will want to ensure that their estate plans have guardianship provisions for their children. Even when people have trusts and trustees, they still need guardians of property to oversee any non-trust funds for children.

Florida has two types of guardians: limited guardians and plenary guardians. A limited guardian 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, but a plenary guardian will be 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.

Under Florida Statute § 744.3045, a preneed guardian is a declaration allowing people to name a person to serve as guardian of their person or guardian of their property if they become mentally or physically disabled and can no longer manage their 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 Speak with a Titusville Estate Planning Lawyer

If you are currently thinking that you might need an estate plan in Florida, it is going to be important for you to retain legal counsel so you can be confident that you are handling all of your paperwork in the proper legal manner. Upchurch Law has extensive experience in estate and probate cases, so we understand how to help people who need assistance with these types of issues and know how to get real results.

Our firm is based in Daytona Beach but serves clients throughout the greater Titusville area and many surrounding areas of Florida, including people in Brevard County, Broward County, Duval County, Miami Dade, Ormond Beach, Palm Coast, Port Orange, St. Johns County, Tampa, and St. Petersburg. Call (386) 272-7445 or contact us online to receive a free consultation with our Titusville estate planning lawyer.

What are the 5 components of estate planning? 

When it comes to estate planning, the five key elements common to all scenarios will be wills, trusts, powers of attorney, healthcare or medical directives, and beneficiary designations. The will is important because it identifies who will receive property and also names a person to execute the will. A trust can allow property to be held on behalf of beneficiaries. A power of attorney will let a person designate somebody else to manage their affairs should they become unable to do so. The healthcare or medical directive will allow a person to name somebody else to make healthcare decisions on their behalf should they become unable to do so themselves. And beneficiary designations are always important because they are the most up-to-date list of people who are to receive a person’s property. All five of these elements work in unity with one another to create a strong estate plan that protects all of a person’s interests.

What estate planning documents do I need in Florida? 

As discussed here, it is highly recommended that all Floridians have a last will and testament, a revocable living trust, a power of attorney, healthcare advance directives, and guardianship provisions in place. Additional documents people may wish to have include letters of instruction, which allow people to communicate final wishes about their funeral arrangements, medical care, and other provisions that are not legally binding but can still communicate wishes to executors. Some people also may wish to express provisions relating to their digital assets, such as website domain names, social media accounts, email accounts, and other electronically stored material. It is always recommended that people speak to experienced estate planning attorneys so they can know exactly which steps need to be taken in their particular cases.

What are the 3 main priorities you want to ensure with your estate plan? 

Any person creating an estate plan in Florida is going to want to ensure that their estate plan provides financial security for their family, preserves their property and distributes it to a person’s desired beneficiaries, and limits disputes among family members and third parties. People need to properly determine all of their assets when creating estate plans, making sure to include all homes and real estate, motor vehicles, bank accounts, insurance policies, retirement plans, and other personal possessions. Florida does not have an estate tax, but some people can face federal estate taxes.

What assets should be considered when planning your estate? 

When talking about the types of assets people can include in estate plans, the options can be quite diverse. The most common kinds of assets often include real estate because homes are among the most valuable items people can own. Bank accounts are also very common, as are stocks, bonds, and mutual funds. Some people may have investment accounts, retirement accounts, or brokerage accounts. Life insurance policies can also be very valuable. Motor vehicles, furniture, and various collectibles can also be assets. Finally, many people will have different kinds of digital assets they want to pass on to others.

What is the first step in estate planning? 

The first step in the estate planning process can be a very time-consuming one but also an incredibly important step. People have to begin by inventorying all of their personal assets because a person cannot pass along their possessions until they know exactly what they own. For most people, assets are divided into tangible and intangible assets, with tangible assets being the physical property people can see, while intangible property is less distinct. Your home, motor vehicles, and jewelry are all tangible assets, while your bank accounts, retirement plans, and business ownership are intangible assets. People must really take the time to think about everything they own and write every single item down so all of their property will be accounted for. 

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