Estate Planning

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Wills


A will is a written direction controlling the disposition of property at death. The laws of each state set the formal requirements for a legal will. In Florida;

1. You, the maker of the will (called the testator), must be at least 18 years old.
2. You must be of sound mind at the time you sign your will.
3. Your will must be written.
4. Your will must be witnessed and notarized in the special manner provided by law for wills.
5. It is necessary to follow exactly the formalities required for the execution of a will.
6. To be effective, your will must be proved in and allowed by the probate court.

No will becomes final until the death of the testator, and it may be changed or added to by the testator by drawing a new will or by a "codicil," which is simply an addition or amendment executed with the same formalities of a will. A will's terms cannot be changed by writing something in or crossing something out after the will is executed. In fact, writing on the will after its execution may invalidate part of the will or all of it.


Revocable Trusts


A revocable trust is a document (the “trust agreement”) created by you to manage your assets during your lifetime and distribute the remaining assets after your death. The person who creates a trust is called the “grantor” or “settlor.” The person responsible for the management of the trust assets is the “trustee.” You can serve as trustee, or you may appoint another person, bank or trust company to serve as your trustee. The trust is “revocable” since you may modify or terminate the trust during your lifetime, as long as you are not incapacitated.

During your lifetime the trustee invests and manages the trust property. Most trust agreements allow the grantor to withdraw money or assets from the trust at any time, and in any amount. If you become incapacitated, the trustee is authorized to continue to manage your trust assets, pay your bills, and make investment decisions. This may avoid the need for a court-appointed guardian of your property. This is one of the advantages of a revocable trust.

Upon your death, the trustee (or your successor if you were the initial trustee) is responsible for paying all claims and taxes, and then distributing the assets to your beneficiaries as described in the trust agreement. The trustee’s responsibilities at your death are discussed below.

Your assets, such as bank accounts, real estate and investments, must be formally transferred to the trust before your death to get the maximum benefit from the trust. This process is called “funding” the trust and requires changing the ownership of the assets to the trust. Assets that are not properly transferred to the trust may be subject to probate. However, certain assets should not be transferred to a trust because income tax problems may result. You should consult with your attorney, tax advisor and investment advisor to determine if your assets are appropriate for trust ownership.


 Pet Trusts


1. A trust may be created to provide for the care of an animal alive during the settlor's lifetime. The trust terminates on the death of the animal or, if the trust was created to provide for the care of more than one animal alive during the settlor's lifetime, on the death of the last surviving animal.
2. A trust authorized by this section may be enforced by a person appointed in the terms of the trust or, if no person is appointed, by a person appointed by the court. A person having an interest in the welfare of the animal may request the court to appoint a person to enforce the trust or to remove a person appointed.
3. Property of a trust authorized by this section may be applied only to the intended use of the property, except to the extent the court determines that the value of the trust property exceeds the amount required for the intended use. Except as otherwise provided in the terms of the trust, property not required for the intended use must be distributed to the settlor, if then living, otherwise as part of the settlor's estate.


Powers of Attorney


What is a “Limited Power of Attorney?”
A “Limited Power of Attorney” gives the attorney-in fact authority to conduct a specific act. For example,
a person might use a Limited Power of Attorney to sell a home in another state by delegating authority
to another person to handle the transaction locally through a “limited power of attorney.” Such a Power
could be “limited” to selling the home or to other specified acts.

What is a “General Power of Attorney?”
A “general” Power of Attorney typically gives the attorney-in- fact very broad powers to perform any
legal act on behalf of the principal. Often a list of the types of activities the attorney- in-fact is authorized
to perform is included in the document.

What is a “Durable Power of Attorney?”
Limited and general Powers of Attorney terminate if and when the principal becomes incapacitated.
Because many people would like Powers of Attorney that may continue to be used upon their incapacity,
Florida law provides for a (special) power known as a “Durable Power of Attorney.” A Durable
Power of Attorney remains effective even if a person becomes incapacitated; however, there are
certain exceptions specified in Florida law when a Durable Power of Attorney may not be used for an
incapacitated principal. A Durable Power of Attorney must contain special wording that provides the
power survives the incapacity of the principal. Most Powers of Attorney granted today are durable.