Every Florida resident should have an estate plan. Even a person who does not have substantial property holdings or assets needs to understand the legal consequences of their death. Without a well thought out estate plan, an heir or beneficiary may incur unnecessary legal expenses and face delays in settling the affairs of the deceased relative which could have been avoided or reduced.
A basic estate plan consists of the following documents:
Last Will & Testament: A document which names a beneficiary or beneficiaries who are to receive the deceased party’s property and assets and names a person in charge of their estate and to pay all proper debts.
Durable Power of Attorney: Appoints someone to conduct specified financial transactions on behalf of an incapacitated person while alive. It remains intact, or “durable,” even if a person suffers mental incapacity in the future.
Healthcare Surrogate or Medical Directive: Appoints someone to make health care or medical decisions & obtain medical information while still alive. This medical power of attorney also remains intact, or “durable,” even if a person suffers mental incapacity in the future.
Living Will: A written statement indicating the medical care, particularly life-preserving/saving or resuscitation measures, in the event he or she becomes unable to make his or her own decisions.
Preneed Guardian: This declaration allows an individual to select who they would like to take care of themselves if they ever become incapacitated or who will become their minor child’s guardian if the child’s last surviving parent dies or becomes incapacitated. The Declaration or Designation of Preneed Guardianship can list multiple people in the order of preference.
Lady Bird Deed: Formally known as an Enhanced Life Estate Deed, it is designed to allow property owners in Florida to transfer real property to others automatically upon their death while keeping use, control, and ownership while alive.
Designation of Beneficiaries: A beneficiary designation involves naming the person who will directly receive an asset or funds in case of the death of its owner. Assets that allow for beneficiary designations include insurance policies, retirement accounts such as 401(k) plans, IRAs, annuities, brokerage and other financial or bank accounts.
Assuming probate is necessary, then Probate is a court-process or procedure to authenticate a decedent’s Last Will & Testament. A Personal Representative (in some states called an Executor) usually named in the said Last Will, is appointed by the court to carry out the administration of the deceased party’s estate. The most important duties of the personal representative are to locate all the decedent’s property, notify the decedent’s creditors of the probate, pay the decedent’s debts, and distribute the decedent’s property to the beneficiary or beneficiaries named in the Last Will.
There are essentially two types of probate proceedings:
Summary Administration: Summary administration can only be used when the total value of decedent’s assets subject to probate are $75,000 or less, or when the decedent has been dead for more than two (2) years and no Personal Representative is appointed.
Formal Administration: Formal administration is used for all other estates or whenever a Personal Representative is needed for other purposes.
A simple probate proceeding can take up to a year. There are many circumstances which can cause the probate proceeding to last much longer than a year. Distribution of property to the beneficiary or heir does not take place until the estate has been fully administered. With a properly executed estate plan, the cost of the probate and the delay in the distribution of the property to the beneficiary or beneficiaries can be reduced or avoided.
An experienced attorney can assist in formulating a suitable Estate Plan and minimize the need for probate.
The foregoing is a brief and general overview of the benefits of consulting with an Estate Planning attorney in creating an appropriate Florida Estate plan.
If you have any additional Questions regarding the foregoing or have any legal issue or concern, please contact the law firm of CASERTA & SPIRITI in Miami Lakes, Florida.