Why are estate documents important?
The Florida legislature has given each competent, adult citizen basic tools to use to ensure that his/her legal wishes are enforceable in the event of his/her incapacity (physical or mental inability to make decisions) and his/her death.
Generally, these tools consist of four formal documents, a Last Will and Testament, a Durable Power of Attorney, a Healthcare Surrogate and a Living Will. These documents will be more fully explained in a separate blog.
These four documents are not the only tools available but they generally address the needs of most middle class or working class people. However if you are wealthy enough that a federal Estate Tax may apply at your death (see a separate blog on this subject), if you are caring for persons needing support after your passing, if you wish to make charitable donations during or after your death, or have other specialized wishes, you may need special trusts and other more complex estate documents to achieve your goals. If you do, pick your financial team carefully; that team should include a CPA, a licensed financial advisor, and an estate planning attorney.
For the four basic documents, you should see a Florida attorney who will explain the impact of the documents to your specific financial and family situation. It is not advisable to find a form on line or at the office supply store; remember that each state has different laws and requirements for valid and enforceable estate documents. And only a Florida licensed attorney can legally explain the impact of your wishes on your estate and on your family. Because Florida law changes and because our lives change, it is a good practice to have your attorney review you documents periodically as suggested by your attorney.
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 govern by Florida law and which will address Florida’s law governing Florida real property.
Finally points to keep in mind:
1). 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);
2). Similarly, the Durable Power of Attorney addresses issues that will arise during your life time;
3). The Last Will and Testament addresses issues after your death. The Last Will and Tesament 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.
4). 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.