At Hill & Bondani, PLLC, our experienced estate planning attorneys are always ready to assist in putting our client’s concerns at ease. Our services include the drafting of Florida wills, durable powers of attorney, designations of health care surrogate, living wills, and revocable or irrevocable Florida trusts. We understand that the needs of every estate are as different as they are important to each of our clients and their families. This is why we work hand-in-hand with our estate planning clients to ensure that every phase of their estate plan is executed competently and timely. If you have any questions or concerns about your Florida estate plan, please do not hesitate to contact our Ponte Vedra Beach office for more information.
Below are some common questions relating to estate planning law and the estate planning process. If you have any more detailed questions, please do not hesitate to contact us to see how we can assist you.
1. Do I need a will?
The simple answer is that everyone should have a will. A will is the basic legal document that outlines how a person wishes their estate to be administered when they pass away. Without the guidance of a will, it is left up to the decedent’s family, friends, or other designated representatives, along with the Florida courts, to determine how the estate will be managed and distributed. This uninformed process often puts extraordinary and unnecessary stress on loved ones during an already difficult time.
2. What does a Florida will require?
Every Florida will must be in made writing and must be signed at the end by the maker (testator) or by an agent of the maker at the maker’s instruction and in the maker’s presence. The will must also be acknowledged by the maker in the presence of two witnesses who must also sign the will in the presence of the testator and in the presence of each other. The vast majority of Florida wills also include a self proving affidavit, which is a written declaration made by the maker and the witnesses before a notary public that this process was followed. The purpose of this affidavit is to remove the need to have a witness attest to the will’s validity before it can be admitted to a Florida probate court.
3. What is a codicil to a will and what does it require?
A codicil is an amendment to a will. In order to be legally valid, a codicil requires the same formalities as a Florida will in terms of execution. A common misconception is that an individual may amend their will either through a self-written and signed codicil or by striking through provisions on the will itself and adding new terms which are then initialed or signed and dated (interlineation). This method of amending a will is not legally adequate and may cause significant problems when the time comes to admit the will to probate court.
4.What is probate?
Probate is the process by which a decedent’s estate is legally administered and settled. In Florida, the probate process is overseen by the Florida court system, either through the civil courts or a specially designated probate court. The probate process begins with the filing of the decedent’s will (if any), death certificate, and a petition for probate administration with the appropriate court by a personal administrator (executor) or other interested party, often with the assistance of an attorney. The probate process concludes when the debts of the decedent have been satisfied and the remaining assets of the decedent have been distributed to the appropriate beneficiaries. To learn more, visit our page on probate administration.
5. What is the purpose of a Florida revocable living trust?
A Florida revocable living trust is often included as part of an estate plan when the goal of the client is to avoid probate. A written trust agreement outlines how the trust will be administered during the lifetime of the trust creator (known as a grantor or settlor) and also details how trust assets will be distributed when the creator dies. In this manner, the trust maintains a similar function to the Florida will. One key difference is that the trust itself, rather than the individual, maintains ownership of the creator’s assets. When the creator dies, the trust remains in existence and a successor trustee takes over. This successor trustee is charged with carrying out the terms of the trust, much in the way the personal representative and courts are charged with carrying out the provisions of a will. However, when a revocable trust is utilized, the courts are not involved, only the successor trustee. This type of planning has the potential to significantly reduce the time and cost that is frequently associated with the Florida probate process. Additionally, since the trust agreement is not filed with the court, the administration of the decedent’s estate can remain a private affair.
6. What is the purpose of a durable power of attorney?
A Florida durable power of attorney is a powerful legal document which grants one person (the agent) the power to direct and administer the property and finances of another (the principal). In Florida, durable powers of attorney are governed by statute and require certain formalities in drafting and execution in order to be legally valid.
Florida durable powers of attorney are generally only valid while the principal is alive. Upon death, the will, trust, or laws of intestacy will govern the disposition of the estate assets going forward. Florida durable powers of attorney may also be set aside upon the filing of a guardianship action on behalf of the principal. For this reason, a Florida durable power of attorney alone is an imperfect plan for dealing with the possibility of future incompetency.
7. What is the purpose of a designation of a health care surrogate?
A Florida designation of health care surrogate is a legal document which determines who will make health care decisions for someone if they are unable to make them for themselves. It is often helpful to think of a designation of health care surrogate as a power of attorney over health care matters. Designations of health care surrogate are governed by Florida law and require certain formalities in execution.
8. What is the purpose of a living will?
A Florida living will is a legal document which outlines an individual’s wishes in regards to life prolonging treatment in situations where the individual is mentally and physically unable to make their desires clear on their own. In Florida, living wills are governed by statute and require observance of the proper formalities in execution.
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