Orlando Estate Planning Attorney
Orlando Estate Planning Basics
Orlando Estate Planning Attorney, Linda Solash-Reed, addresses the Estate Planning Basics, and the important actions to take when planning for the future.
Last Will and Testament
A will is a document whereby an individual expresses their wishes and desires concerning the disposition of their property (assets) after death. With a few limitations, a person can give property to whomever they want and for whatever purpose they desire upon their death.
A will is also used to designate the person who will act as the personal representative. The personal representative (referred to in some states as an “executor”) is the individual who acts as decedent’s legal representative charged with administering that person’s estate. The personal representative has the right to bring legal claims on behalf of the decedent or defend claims of third parties against the probate estate.
Often a will is used to designate the guardian of a decedent’s minor children in the event that there is no other surviving biological or adoptive parent of the child.
No will becomes final until the death of the testator, and it may be changed or added to by the testator by drawing a new will or by a “codicil,” which is simply an addition or amendment executed with the same legal formalities of a will. A will’s terms cannot be changed by writing something in or crossing something out after the will is executed. In fact, under Florida law, writing on the will after its execution may invalidate part of the will or all of it.
Revocable (“Living”) Trusts
Revocable trusts are the most common type of trust involved in the estate planning process. All trusts involve three parties: the owner/creator, “Settlor”, the manager, “trustee” and the beneficiary. When an individual or couple use a trust as their basic estate planning tool, they typically fill all three roles.
A primary advantage of a living trust is that it avoids the probate court process. Generally, the assets managed by the trust can pass to the heirs or beneficiaries shortly after the death of a settlor.
The revocable trust typically provides that in the event of the grantor’s incapacity a successor trustee automatically takes over the administration of trust property. The incapacity provisions of a living trust permit the settlor and their family to avoid a public guardianship in the event that the settlor becomes unable to manage his trust property.
In addition to provisions for incapacity and avoidance of probate, revocable trusts have other estate planning benefits. For individuals with property located in multiple states, a revocable trust that owns all of the client’s real property avoids probate proceedings in each state where property is located. The administration of a client’s property is consolidated through the use of a single trust document.
Living trusts do not provide asset protection. In fact, a living trust provides no asset protection benefits in Florida and most other states
Durable Powers of Attorney
A power of attorney is a powerful document that gives another person the authority to stand in your shoes and do any legal act you could do for yourself. That person is called your “attorney-in-fact” or “agent.”
A “durable” power of attorney is one that remains effective when you are incapacitated. The primary purpose of a power of attorney is to have a back-up decision maker to help you (and your loved ones) should you become incapacitated, so a durable power of attorney is an important part of every adult’s estate plan.
The Florida Legislature has recognized that every competent adult has the fundamental right of self-determination regarding decisions pertaining to their own health, including the right to choose or refuse medical treatment or procedures which would only prolong the dying process when a terminal condition exists. To ensure that this right is not lost or diminished by virtue of later physical or mental incapacity, the Legislature has established a procedure within Florida Statutes § 765 allowing a person to plan for incapacity, and if desired, to designate another person to act on his or her behalf and make necessary medical decisions upon such incapacity.
- Living Will: A competent adult has the right to make a written declaration commonly known as a “Living Will.” The purpose of a Living Will is to direct the withholding or withdrawal of life prolonging procedures in the event one should have a terminal or end-stage condition or be in a persistent vegetative state.
Health Care Surrogate Designation: A competent adult may designate authority to a Health Care Surrogate to make all health care decisions during any period of incapacity. During the maker’s incapacity, the Health Care Surrogate has the duty to consult expeditiously with appropriate health care providers. The Surrogate also provides informed consent and makes only the health care decisions for the maker, which they believe the maker would have made under the circumstances if the maker were capable of making such decisions. If there is no indication of what the maker would have chosen, the Surrogate may consider the maker’s best interest in deciding on a course of treatment.
Trusts and More Trusts
Discuss Your Needs with an Estate Planning Attorney
For further inquiries about Orlando Estate Planning and Taxes, please call (321) 804-2915 to discuss your needs with a local estate planning attorney.