As we all know, death is inevitable. In our English tradition of law, safeguards exist to protect spouses, children and extended families in the event of the death of a member of the household. Without legal safeguards, assets and property that we have labored to acquire for the benefit of those we love, could be seized by the biggest, meanest person in the neighborhood. Proper estate documents and the probate proceeding help ensure the welfare of our families. Incapacity, being unable to physically or mentally take charge of our lives, though not inevitable, is possible. The laws of the State of Florida make available to citizens legal safeguards to protect assets and persons in the event that you become permanently or even temporarily unable to manage your life.
Examples of legal safeguards are documents such as Powers of Attorney, Durable Powers of Attorney, Last Will and Testaments, Healthcare Surrogates and Living Wills. These are documents which every citizen of Florida should sign and keep updated. Below is a simple definition of these documents. Be aware that these are simplistic definitions and that there are formal limitations and requirements for content and signing to ensure the validity of the documents:
Power of Attorney is a written document signed by a person (Grantor) giving another person the power to act in conducting the Grantor’s personal or legal business usually limited to specific matters and effective only if the Grantor retains the legal capacity to do the act.
Durable Power of Attorney is a written document signed by a person (Grantor) giving another person the power to act in conducting the Grantor’s personal or legal business usually broad in scope and effective even if the Grantor does not have the legal capacity to conduct the business.
Last Will and Testament is a written document signed by a person prior to his/her death which instructs the distribution of the decedent’s assets and properties to persons or entities.
Healthcare Surrogate is a written document signed by a person (Grantor) authorizing another person to make healthcare decision for the Grantor in the event that the Grantor is unable to do so because of incapacity.
Living Will is a written document signed by a person stating the person’s intention, in the event that the person is at the end of life, to refuse an extraordinary life-support procedure if such procedure would artificially keep the person alive.
There are a number of more complex and sophisticated instruments which address more advanced concerns such as lifelong support of a handicapped offspring or an adverse impact of the Federal Estate Tax.
Same sex couples may be the least protected family group. If a partner dies without a Last Will and Testament, assets and property will be devised according to Florida’s intestate laws. Florida has written a Last Will and Testament for every citizen who dies without their own. Under the intestate will, the decedent’s estate will be distributed to a legal spouse and to minor children first, if none exist to various levels of the decedent’s heirs. Under intestate law, there is no provision for distribution to gay, lesbian or unmarried partners of the decedent. Further without Living Wills and Healthcare Surrogates, gay and lesbian partners may be ignored in the decision making for their sick partner; decisions by a biological family member who may not have supported the relationship, will take precedence.
Probate is the legal process before the Court that oversees the decedent’s desires as expressed in his/her Last Will and Testament (testamentary probate) or oversees the intestate process described above. The Court ensures that legitimate debts as defined under Florida law are paid from the decedent’s estate. The documents that are to be filed with the Court are formalized and rigorous. The interpretation of the law regarding issues that arise in any probate court proceeding are complex. Advice and representation by a licensed Florida probate attorney cannot be underestimated. The attorney fees for such services are regulated by the probate statutes.
If you are new to Florida but already have estate documents from another state, generally Florida will recognize those documents as valid as long as the form and content of the documents matched the legislative requirements for those documents in that state at the time you executed the documents. If you now own real property in Florida or intend to make Florida your permanent home, it is best to have a Florida attorney provide new estate documents which will be governed by Florida law and which will address Florida’s law governing Florida real property.
Points to keep in mind:
- The Healthcare Surrogate and the Living Will are documents addressing issues that arise while you are still alive but unable to make decisions for yourself (see Healthcare Surrogate and Living Will for additional information);
- Similarly, the Durable Power of Attorney addresses issues that will arise during your life time;
- The Last Will and Testament addresses issues after your death. The Last Will and Testament may require probate (the Court’s involvement to ensure that your asset distribution wishes are carried out and that valid debts of your estate are paid to the extent that Florida law requires). Probate is not necessarily expensive and can function to protect your assets for the use of your family. Please see the separate blog on Probate.
- Your marital status, whether you have minor or grown children, your election to be involved in a same sex relationship are decisions or situations which modify the importance of specific estate planning documents on your life. A full and frank relationship with your attorney is important to protecting you and your wishes. Choose an attorney who is knowledgeable about such issues and make sure that you are comfortable with your chosen attorney.