Knowing where to start with your Estate Planning documents can be intimidating to many.
But it doesn’t have to be!
Regardless of the size or complexity of your estate, there are 4 main planning documents that every individual should consider to ensure their wishes are followed, and to minimize the burden on loved ones. They include a Last Will and Testament, a Living Will, a Health Care Surrogacy and a Durable Power of Attorney.
Last Will and Testament
A Last Will and Testament, the most common of these documents, allows a Testator (the person executing the Will) to designate specific recipients of their property or assets, such as real estate, cash, jewelry, vehicles, business interests etc., upon their death.
In addition to designating ones’ assets, Wills may also contain provisions establishing trusts for asset management purposes or the care of pets, as well as, the naming of legal guardians for minor children in Florida. Further, a Will in Florida also permits the Testator to assign a trusted Executor or person who will be responsible for carrying out his/her wishes. This way, the Testator can assure that his or her wishes will be carried out exactly as intended by someone trusted.
Although a Will is not legally required in Florida, when a person dies without a Will (intestate), state laws will be applied to determine how that person’s property will be distributed. Therefore, failing to have a Will runs the risk of your wishes being disregarded and assets being transferred to those you never intended to account for. The main disadvantage of utilizing a Will, however, is the need for it to be administered through the Probate Court which increases cost and time.
Contrary to the Last Will and Testament, a Living Will (which is known as an Advance Directive) is a document in which you can clearly state your intentions for end-of-life medical care in the event you become unable to verbalize your wishes. Therefore, despite the similarity in names, a Living Will has no effect after one’s death unlike a Last Will and Testament that only becomes effective upon an individual’s death. Instead, a Living Will is effective from the moment it is signed, and when a person has been deemed unable to communicate his or her wishes regarding medical treatment, and can be revoked at any time.
A Living Will is an important part of one’s estate planning documents as it provides direction to families and medical professionals as to a person’s wishes regarding life-prolonging procedures, treatment for terminal conditions, end-stage conditions or persistent vegetative state conditions. It helps to avoid disputes as to how to proceed regarding one’s end-of-life medical treatment.
Health Care Surrogacy
Also considered an Advance Directive, a Health Care Surrogate Designation names a trusted person to make medical decisions for you in the event you are unable to do so. This document expands the power of a Living Will as it is not limited to circumstances in which the signor may be dying. Given the authority extended by this document, it is advisable to specify which treatments you would want and those you would not so that the designee makes decisions consistent with your intent. Typically, a person’s spouse is named as the surrogate with a child or parent being the alternate.
Durable Power of Attorney
Similarly, a Durable Power of Attorney delegates authority to a trusted person to act as your agent for specified financial purposes such as the ability to purchase or sell items on your behalf, sign contracts, file income taxes etc. Essentially, a Power of Attorney gives a person the right to do any legal act that you could do yourself.
In Florida, a Power of Attorney must be signed by the Maker and two witnesses before a notary. Typically, a Power of Attorney terminates when the Maker becomes incapacitated. However, a Durable Power of Attorney remains in effect even after a person has become incapacitated but terminates upon that person’s death.
These four documents provide a great start to any estate plan and assures you that your specific intentions will be accomplished upon your passing or in the event you are unable to make medical or financial decisions yourself. Contact an experienced Estate Planning attorney to discuss getting started on your documents today!