Estate Planning is the process of planning the manner in which an individual or couple’s personal and financial affairs are to be managed, and assets administered or distributed, in the event of death or incapacity. Typically, the planning involves the design and implementation of various legal documents including wills, trusts, powers of attorney, and healthcare directives (including “living wills” which are applicable in the event of terminal illness). An important aspect of estate planning is to ensure that one’s assets such as real estate, bank accounts and investments, retirement assets such as 401(k)’s and other valuable possessions are transferred or managed for the benefit of the intended beneficiaries whether that be family members, friends, a favored charity or church.
The following is a list of some important issues and considerations that come into play in the planning process:
A will is a document executed in the manner prescribed by Florida law in which the person executing the document (the “testator”) expresses his or her wishes as to the disposition of property at death and may specify any desired conditions or restrictions on the intended gifts. Anyone who is 18 years of age and of sound mind or emancipated by marriage can make a will in Florida – there are exceptions to the age requirement for persons serving in the military. The document must be signed by the maker in the presence of at least two witnesses - preferably in the presence of a notary who acknowledges the execution in his or her presence.
A will can be as simple or as elaborate as necessary to carry out the maker’s intentions and can be drafted to provide continued care and management of assets for the benefit of the heirs. For example, a will can include a “testamentary trust” established for minor or special needs beneficiaries and it can be sued to nominate guardians of the person and/or property of a decedent’s surviving minor children. On the other hand, a will can also be made solely for the purpose of appointing someone to serve as personal representative of the estate who will to carry out the decedent’s wishes, or to revoke a prior will.
The formalities of execution are exacting and should be overseen by an experienced attorney to ensure validity and to avoid unnecessary expense in having the will admitted to probate. For this reason, anyone relocating to Florida from another state should consider preparing a new will or at a minimum have their existing will and other estate planning documents reviewed for conformity with Florida law. And it is extremely important for everyone to review their existing will and other estate planning documents from time to time. Changed personal circumstances such as divorce, marriage or the loss of an intended beneficiary may require changes to your existing documents or even an entirely new estate plan.
A “separate writing” for tangible property is a written statement or list referred to in the Testator’s will by which one may dispose of items of tangible personal property – other than property used in a trade or business, not otherwise disposed of by the will. To be administered as part of the will it must be signed and must describe the items and gifts with reasonable clarity. It may be prepared before or after the preparation of the will and can be later altered by the Testator. The primary advantage of preparing a separate writing is that it does not require a notary’s acknowledgement or witnesses, which makes it an efficient way to supplement the will without incurring legal expenses.
The personal representative’s job is to gather and protect the assets of the estate and make distribution in accordance with the decedent’s wishes if there is a will or in accordance with Florida law if the decedent died “intestate,” without a will. One of the most important duties of the personal representative is to deal with creditors of the probate estate – all valid creditor claims must be paid out of non-exempt probate assets unless the decedent has been dead for two years or more. It is the personal representative’s job to determine which claims are valid. Any competent resident of Florida may serve as personal representative. That said, the following individuals are not permitted to function as personal representative: (1) felons, (2) those who are mentally or physically unable to perform the duties of personal representative and (3) those under the age of 18. Out of state residents are qualified to serve as personal representative provided they are: (1) related by lineal consanguinity, (2) a legally adopted child or adoptive parent of the decedent, (3) a spouse, brother, sister, uncle, aunt, nephew or niece of the decedent or someone related by lineal consanguinity to any such person or (4) the spouse of anyone otherwise qualified to serve.
Intestacy means dying without a valid will and yes, the laws of intestacy of the state in which you are domiciled and/or own property will determine who will inherit your property at death if you die without a will. Unfortunately, the laws of Florida or any other state you reside or own property in may provide the estate plan you might have made had you died with a will. Case in point, in today’s world with so many “blended families” comprised of children of different marriages, your spouse and the children of that marriage might be very unhappy to learn that that your property is not going to pass to them at your death in the manner either you or they expected. For this reason alone, it is extremely important to discuss your wishes and your personal circumstances with an experienced attorney who can assist you in implementing an estate plan that meets your current needs.
If you live in the DeLand, FL area of Volusia County, including DeBary, Deltona, Lake Helen and Orange City, and you would like to learn more about Estate Planning or modifiying your existing Estate Planning Documents, contact Clare Ann Keijer, Attorney at Law today at 386-736-3660.