If you have been considering the possibility of drafting a will, establishing a trust, naming an agent through a power of attorney, creating a living will, or signing a related document, you are likely thinking about the process of estate planning. In general, estate planning is a broad area of the law through which a person can work with an attorney to make decisions about their assets, including how they are currently owned and how they will be transferred upon death, as well as decisions about finances and health care in the event of incapacity or death. In other words, estate planning is all about making important decisions concerning your property and finances, and your own health care, when you become unable to make those decisions for yourself or when you pass away.
There are specific documents that you must create and specific legal processes you must go through in order to handle varying aspects of estate planning in Florida. Most aspects of estate planning are governed by the estates and trusts sections of the Florida Statutes. An experienced Boca Raton estate planning attorney can assist you.
Making a Valid Will
Making a will is one of the most important aspects of estate planning, and it is a part of estate planning that is important for almost everyone. What is a will? In short, a will, also known as a last will and testament, is a set of written instructions about how your assets will be distributed upon your death. The person who makes a will is known as the testator. Every state has its own requirements for a will to be valid and enforceable, and these are the requirements under Florida law:
- Testator must be at least 18 years old;
- Testator must be of sound mind;
- Will must be written (i.e., it cannot be an oral will);
- Will must be witnessed by two witnesses;
- Testator must sign the will in the presence of the two witnesses; and
- Will should be notarized in order for it to be self-proving (otherwise, the witnesses will need to attest to the validity of the will upon the testator’s death).
If you die without a valid and enforceable will, you will have died “intestate.” In these circumstances, you will not have any say over how your property is distributed. Rather, your assets will be distributed to heirs or beneficiaries according to Florida intestacy law.
Powers of Attorney
A power of attorney is a type of legal authority that allows another person to act on behalf of another person by law. The person who creates the power of attorney (the principal) gives another trusted person known as an agent the ability to make certain decisions for them by law.
Establishing a Trust
Trusts are another important part of estate planning for many people. What is a trust? It is a fiduciary relationship in which the person who makes the trust (the trustor) gives another party (the trustee) the right to hold and to control assets on behalf of the beneficiaries of the trust.
It is important to know that trusts can allow a person to pass assets in a way that does not require those assets to go through probate, but trusts are not substitutes for wills. Rather, trusts are usually established in addition to a will since some types of assets cannot be held in a trust or distributed to beneficiaries through a trust. There are different types of trusts in Florida, including types of both revocable and irrevocable trusts. In some cases, trusts can be used for Medicaid planning or to ensure that a disabled adult loved one has the assets they need while remaining eligible for government benefits.
Health Care Advance Directives
Health care advance directives are a critical aspect of estate planning, and everyone should have them. These documents allow you to make health care decisions for yourself in the event you become incapacitated, or to name another party who can make those decisions for you. The common types of advance directives in Florida include:
- Living will, which allows you to specify your wishes for certain medical treatments and life-saving care in the event of incapacity;
- Health care surrogate designation, which allows you to name another person who can make health care decisions on your behalf if you become incapacitated (also known as a health care power of attorney); and
- Anatomical donation, which clarifies that you will donate organs or your body for medical or research purposes.
Contact Our Boca Raton Estate Planning Lawyers
Estate planning is important for everyone regardless of their age or financial circumstances. While there are many misunderstands and misconceptions about who needs to consider estate planning, it is essential to know that estate planning is a critical process for everyone. Whether you have substantial assets or a small number of assets, you will want to think about how those are passed onto your loved ones and beneficiaries. You will also want to consider how your finances and health care will be handled if you become incapacitated and are unable to make those important decisions for yourself.
Our Boca Raton estate planning attorneys can help. Contact Loughlin Law, P.A. today for more information about the services we provide to clients in South Florida.