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The law Offices of Clare Ann Keijer would be pleased to assist you with all of your Estate Planning needs.
What considerations are important in preparing an estate plan? Important considerations might include:
A will is a formally executed document that expresses one's wishes as to where the drafter wants his or her property to go at death and names the person (in Florida the "Personal Representative") who will carry out the decedent's wishes - the Personal Representatives job is to gather the assets of the estate, protect and some cases even insure them, pay the decedents last expenses, if any, and creditors and distribute the balance of the estate in accordance with the decedent's wishes.
In Florida, a will must be signed in the maker in the presence of at least two witnesses and preferably in the presence of a notary who acknowledges the execution in his or her presence. The formalities of the execution process are exacting and should be overseen by an experienced attorney to insure validity and avoid unnecessary expense in having the will admitted to probate. Anyone moving to Florida from another state should have their estate planning documents reviewed for conformity with Florida law.
Probate is the system of court proceedings by which the estate of a decedent is processed and distributed in accordance with the decedent's wishes after satisfaction of debts and creditors' claims. A common misconception is that having a will avoids probate. Wills must be probated but if the decedent died with property in his or her name alone - BUT there are still ways to avoid probate with proper planning, if that is a priority. You should discuss the pros and cons of probate with a competent attorney. There are pros and cons.
A revocable trust is very commonly used to avoid probate. A revocable trust is a legal document created by a "Settlor(s)" or "Grantor(s)" as a vehicle for owning assets. Typically, the Settlors transfer ownership of all of their assets to the trust, example the "Jones Family Trust." During the joint lives of the Settlors the trust assets are fully available for the use and enjoyment of the Settlors, the primary beneficiaries, even to the extent of complete depletion.
A properly drafted revocable trust will provide that it may be amended or totally revokes at any time. At the death of the last to die of the Settlors the trust becomes irrevocable and the remaining trust assets would be held, administered and distributed in accordance with the Settlors' instructions without the need for any court involvement. A key advantage of using a revocable trust is that it can provide for Successor Trustees in the event one or both of the Settlors becomes incapacitated who will take over the management of the trust estate thus avoiding the need for guardianship and court involvement.
A power of attorney is an instrument by which an individual, the "principal," appoints another to act as his or her "agent" with power to carry out the affairs specifically designated in the document. A power of attorney can be general or limited for a specific purpose such as attending a real estate closing on behalf of the principal with authority to sign documents on his or her behalf. In Florida, a document specifically designed as a "durable" power of attorney survives the principal's incapacity so that the agent is empowered to continue conducting the principal's affairs without the need for court involvement. Powers of attorney can be a powerful tool but they should be drafted by an experienced attorney and handled only with good advice and counseling.
One of the most important things you can do for yourself and your family in connection with your estate planning is to have an open and frank conversation with them as to what your wishes are with respect to medical case should you become unable to make decisions or communicate due to illness. By executing written, legal instructions called "advance directives, you can specify the medical care you prefer and ease the burden of decision-making for your loved ones. This is really important if you anticipate that there may be some confusion or disagreement about the choices you would make were you able to speak for yourself.
Advance health care planning usually includes designating a trusted family member or friend to act as your health care surrogate and commonly involves signing a health care power of attorney and living will. The person you designate should be someone who is able to carry out your wishes and will advocate for you. You should have an ongoing conversation with your proxy so that he or she understands you goals as needs and preferences can change.
A living will is a legal document that specifies which medical treatments you want or don't want administered to you when, in the opinion of your attending physician and another consulting physician who concurs, it is determined that there is no reasonable medical probability of recovery. Often the document will direct that life-prolonging procedures be withdrawn or withheld when the application of such procedures would only prolong artificially the process of dying. Some issues to consider as to when, if, and how long you would would want care might include the following: resuscitation, mechanical ventilation, nutritional and hydration assistance, dialysis, surgery, and antibiotics or antiviral medications.