Estate Planning and Probate
The Law Office of Ernest J. Mullins, P.A. is proud to offer our clients experienced estate planning and probate representation. Estate planning and probate constitute a wide array of legal issues, some of which are discussed below. If you would like further information, or have an issue that you don’t see below, please call us to schedule an appointment for a free consultation.
Testamentary Will
A will is a legal instrument that is used to direct where your property will go in the event that you pass away. It is generally a good idea to have a will and to review your will periodically to make appropriate changes. A will address property that is part of a persons probate estate. The probate estate consists of property that has not been transferred by operation of law, such as a home held by tenants in the entirety, and property that has not been placed in a trust prior to the decedents death. Even if you have your assets assigned to trust or use other estate planning tools to keep your assets out of probate, it is still a good idea to have a will that accounts for any property that you may have overlooked during the planning process.
Wills can be very simple or they may be very complex. It all depends on the wishes of the person disposing of the property. Property can be devised based on percentages, or specific bequest of property can be made to specific individuals. The basic format of a will in Florida is fairly straight forward and there are many resources where an individual may find a preformatted will that is essentially a fill in the blanks form with instructions on signing and witnessing. While an attorney is certainly not required for drafting a will, a skilled attorney will be able to listen to what your planning goals are and advise you as to how distributions should be made. It is important to note that the law can be very technical when it comes to interpreting the intent of a will, and in some instances, certain distributions or provisions in a will may not be allowed in Florida. A skilled attorney will be able to advise you in avoiding these drafting errors.
Power of Attorney
Power of attorney, frequently referred to by the abbreviation POA, is an instrument that gives another person the right to have access and control of your financial affairs and in some cases your medical decision making. The person to whom you grant that power to in a POA is called the attorney in fact. A POA may be drafted to take effect immediately, or it may be conditioned on a persons loss of capacity to take effect. The terms in the POA will dictate when loss of capacity has occurred, and generally a POA will require two doctors to write letters concurring that a person is incapacitated to trigger the POA.
POA’s are generally used to give the attorney in fact the authority to handle the financial affairs of the person granting the powers to the attorney in fact. This will allow the attorney in fact to access your bank accounts, manage your investments, and get information from your creditors to manage your bills. Additionally, the POA can define the powers of the attorney in fact very broadly, or it can be drafted to give the attorney in fact a very limited scope of authority.
POA’s can also be used to grant the attorney in fact the ability to make medical decisions on your behalf. This is less frequently used since the same goal may be met by executing a living will naming a heath care surrogate, and due to legal issues regarding the different instruments.
Living Will and appointment of a Health Care Surrogate
A living will is a document in which you can appoint a heath care surrogate and give instructions on medical advanced directives. A heath care surrogate is a person that can make your medical decisions for you in the event that you become incapacitated. Also, you can specify advanced heath care directives in your living will. These directives include whether you wish to have life saving procedures used to sustain you if certain events occur, such as lapsing into a persistent vegetative state. Appointing a health care surrogate can be preferential to using a durable power of attorney to select an individual to make your heath care decisions for two reasons. First, there are potential issues for the person appointed being able to manage your insurance due to Federal Health Privacy Laws when a durable power of attorney is used as opposed to an appointment of a heath care surrogate. Also, a durable power of attorney may be supplemented by letters of guardianship being issued by a court. In other words, if a person is appointed to be your guardian be the court, the durable power of attorney will end. A health care surrogate, on the other hand, will not cease to have control over heath decisions even if a guardian is appointed.
Trust
Trust are used for a variety of estate planning goals. Sometimes they are used to make sure that a beneficiary only has control of small portions of assets to be distributed over time. Other times trust are used to keep assets outside of what the law considers the probate estate to aid in the ease of transfer of assets upon an individuals death. There are also far more complex issues that trusts can be used for, including Medicaid planning and asset protection.
The purposes and implementation of a trust is far to extensive to explain in a few short paragraphs. If you have questions on the use of trust, you should contact an experienced attorney for advice as to what type of trust fits your specific needs and estate planning goals. While all of the different aspects of trust are too complex to explain in a shot summation, below is is a brief overview of the basics of a trust.
A trust is a legal means of splitting the title to property into what is known as legal title and beneficial title. There are three basic players in most trust. they are the settlor, the trustee, and the beneficiary.
The settlor is the person that places assets into the trust. These assets are generally placed into the trust to be used at some point in time by the beneficiary.
The beneficiary is the person that gains what is know as the equitable title to the property in the trust. In other words, the beneficiary is the person that is to receive the benefit of the trust property in accordance with the terms of the trust.
The trustee is the person responsible for managing the trust assets. This includes investing the trust assets and making distributions to the beneficiary of the trust according to the terms of the trust document. The trustee has what is referred to as legal title of the trust property. In other words, the trustee has physical control of the trust property, but the property is being manged for someone else’s benefit.
Generally speaking, most trust require the trustee and the beneficiary to be two different individuals or entities. This is because if you had the same person as both the trustee and the beneficiary there would be no reason to make a distinction as to the type of ownership that person had. In other words, that person would own the property, and could do whatever he or she pleased without being concerned about the directions in the trust documents. It is important to note that there are situations where both the trustee and the beneficiary may be the same person, like in a Florida land trust, but this is usually the exception as opposed to the rule.
This is just a very simple explanation of what a trust consists of, and an experienced attorney should be consulted to see if a trust will fit your estate planning needs and what type of trust should be used.
Administration of estates
When a person has passed away, and there are assets left behind, the estate of the decedent will need to be administered. There are a number of questions about administration of estates that may arise after a loved one passes away, and this is a brief overview of some of the issues that may come up.
First, there are two types of property that may need to be addressed by the court. They are real property and personal property. As a general proposition, personal property, such as cash, stocks, bonds, and tangible items, is handled in the state in which a person was domiciled at the time of his death. A persons domicile is the place where a person generally resides and uses to receive mail, register vehicles, uses for his drivers license address, etc. Real property, on the other hand, must be handled by the state where the property is located.
Next, it must be determined if the decedent left a will. If the decedent left a will, the will should be submitted to the court to be administer in accordance with the will’s terms. This is referred to as dying testate. If the decedent did not leave a will, there is a special set of statutes in Florida that determine where the property of the decedent will go. This is referred to as dying intestate, and the statutes are referred to as the intestacy statutes.
In terms of the types of administration that are available in Florida, there are three basic avenues under the law that may be used to transfer property.
The first type of administration is called formal administration. Formal administration is the most time consuming. A petition is filed with the court to state that someone has passed away, that a will does or does not exist, and that a personal representative needs to be appointed to resolve the estate. A personal representative is the person responsible for delivering all the required notices to various parties, and the person responsible to preserve and eventually transfer the assets of the estate. In formal administration, known creditors of the decedent are notified of the death and a notice by publication is run in the newspaper. The creditors then have a time limit prescribe by law in which to make there claims against the estate to be resolved during probate. In formal administration, creditor claims may be challenged, and the creditors may only recover what they are owed from the assets that belong to the estate.
Florida also has something known as summary administration. Summary administration can be used when there is no real property to be transferred and there are less than $75,000 worth of assets in the probatable estate. Summary administration should be used with caution since it also requires the person filing the petition to agree to be personally responsible for the decedent’s outstanding debts at the time of death.
There is also a way to informally pass assets in Florida without administration; however, this may only be done when the probatable assets do not exceed the funeral expenses of the decedent and the decedent’s last 60 days of medical bills.
Finally, it should be mentioned that there is also a process called ancillary administration. This process is used when a decedent was domiciled in a state other than Florida, and the person had real property in the state of Florida at the time of death. Florida requires administration to be opened in the decedent’s domicile state prior to petitioning fro ancillary administration in Florida.
If you have questions regarding estate planning or probate litigation, please contact us and schedule a free consultation today.
