A Basic Estate Plan in Florida

A basic estate plan ensures that you do not die intestate. If you die without a basic estate plan, and you are a resident of the state of Florida, Part I of Florida’s Probate Code governs the distribution of your assets and possessions.

However, if you wish to control the disposition of your assets and personal possessions, then you will want to create a basic estate plan. That is to say that you must draft a will and other supporting documents. This way you will control this process.

Actually, there needs to be a brief disclaimer here. Perhaps saying your will WILL control the disposition of your assets is a too dogmatic. It is best to say that your will WILL control as long as (because in the law there is always at least one exception) there is no contest to the will by an heir or other interested party. More on that in another blog.

Here is a brief summary of some of the different documents that make up a basic estate plan. You may need one or more of these documents.

The Will

You need a will if you want:

  1. to leave your possessions is different from the way the Florida Statutes distributes them;
  2. your final arrangements carried out in a certain manner;
  3. the people you love get certain specific things from you;
  4. The assets you spent your lifetime accumulating to be passed to the next generation;
  5. Any other reason personal to you or otherwise.

The Trust (not a necessary document)

A trust is a contract among three parties: the grantor, the trustee and the beneficiary. The grantor is the party who puts the assets into the trust. Once the assets are put into trust, the trustee controls the assets. Thus, the trustee is said to have a legal interest in the trust. Finally, the beneficiary is the party who enjoys the benefits of the assets that are held in trust. Thus, the beneficiary is said to have equitable interest in the trust.

Trusts in Florida are governed by The Florida Trust Code.

There are many different reasons that might cause a grantor to form a trust. Here is a short list of some of the reasons to create a trust:

  1. Asset protection;
  2. Tax benefits;
  3. Make a gift to the beneficiary;
  4. Privacy;
  5. Estate planning.

Did you know that a will is filed in the public records and thus becomes part of the public record. A will does not provide any privacy in your assets or who gets what. However, a trust is not filed in the public records. Again, with some exceptions the contents of a trust never become public knowledge.

There are two classes of trusts: Revocable Trusts and Irrevocable Trusts. Each class of trusts offers different legal protections and have different tax consequences. Within each class of trust, there are many different forms a trust can take.

Consequently, you can form different sorts of trusts and for different reasons. It all depends on your goals. What reasons do you have to create a trust?

The Living Will

A living will is an advanced health care directive. You use a living will to specify your end of life choices. Thus, a living will is important to have in the event that you  lose capacity or you are otherwise unable to express your desires. Accordingly, Chapter 756 of the Florida Statutes governs Health Care Advanced Directives.

The Health Care Surrogate Designation

This document names your chosen health care surrogate in case you are no longer to make your own decisions. Thus, by having a health care surrogate designation, you choose who makes the decisions for you when you can longer do this. But, without this, the courts will likely choose who makes these decisions for you. Click here to go to FloridaHealthFinder.gov to read more about this.

The Durable Power of Attorney

A durable power of attorney is a document that gives the right to the named person to make decisions on your behalf in the event you become unable to do so on your own. A durable power of attorney typically gives the chosen person the right to handle your financial affairs. Thus, your bills will continue to be paid. In addition, any investments can be maintained as well. Chapter 709 of the Florida Statutes governs powers of attorney in Florida, including durable powers of attorney.

Do you want to find out more about forming your estate plan? Complete the form below to start the process.