Question: What happens if I am in a car accident or I somehow lose capacity but I am still alive? Who will take care of my banking and pay my bills? Who will make my health care decisions?
Answer: If you have a valid Durable Power of Attorney, the person you designated as Attorney-in-Fact will have the ability to make your financial decisions, handle your banking, and pay your bills. A valid Durable Power of Attorney provides the individual whom you designated as Attorney-in-Fact power to handle your financial affairs. Florida Power of Attorney laws changed in 2011. There are now many new requirements for a Power of Attorney to be valid. Although “old” Power of Attorney documents are still valid (if they were valid when executed), many financial institutions are hesitant to honor these documents since they do not conform with the new law. We advise that you have an Estate Planning Attorney review your current document.
If you have a valid Designation of Health Care Surrogate, the person you designated as your Health Care Surrogate will be able to make your health care decisions for you. If you have a valid Living Will, this document will serve as the “road map” to guide your Health Care Surrogate on understanding your wishes regarding health care decisions. These documents are called Advanced Health Care Directives.
If you DO NOT have properly drafted valid versions of those documents, a Guardianship Proceeding will need to be brought in Court. This is an expensive and burdensome proceeding. Attorney fees and court filing fees will be incurred in order to open the case with the Court. Each year your Guardian will need to provide the Court with an accounting, which will then be scrutinized. The Court’s permission is required in order for your Guardian to take you out of the state and even the county. The cost to pay an attorney to draft a Durable Power of Attorney and Advanced Health Care Directives is approximately 10% of the cost of a Guardianship Proceeding.
What exactly is a Will?
Question: What is a Will?
Answer: A Will is a legal document that specifies your wishes regarding who will receive your personal property and assets upon your death. It is only effective upon your death. In your Will you designate a “Personal Representative” who will manage the administration of your estate when you die. In order for a Will to be effective, it must go through “probate” at court. Attorney’s fees and filing fees are incurred during the probate process.
Question: I have a Will, aren’t I all set when it comes to estate planning? Can’t the person who I appointed in my Will handle all of my affairs? Won’t my loved ones receive my property since they are listed in my Will?
Answer: A Will is only effective once someone dies. None of the provisions in your Will matter during your life. Even upon your death, a Will must go through “probate” in order to be effective. Probate is a court process that is governed pursuant to State Law. It is timely, expensive, and public record. Your loved ones will not receive an inheritance until the probate process is complete. This means that all creditors had the opportunity to come forward and the Judge is satisfied that the estate can be distributed to the beneficiaries. The average length of the probate process is one year.
What is a Living Trust?
Question: What is a Living Trust
Answer: A Living Trust is a legal document that is created during your life. It avoids the need for probate and can be more specifically drafted than a Will. Since a Living Trust avoids the need for probate, there is no delay in your loved ones receiving your intended bequest, it is not public record, court fees and attorney costs are decreased. Also, if any of your loved ones are going through a difficult personal situation, the Trust can protect them from creditors, predators, and prior spouses.
Question: What happens if I don’t have a Will?
Answer: When someone dies without a Will it is called Intestacy. Your estate will be distributed to the people that the State of Florida has chosen for you. The administration of your estate will be managed by the person that the State of Florida has given priority to. Your estate plan is not “your plan” but a default plan that is governed by Florida Law. Your intentions are not known and the State of Florida has laws that dictate what will happen to your personal property and assets.
Plan today for tomorrow and empower yourself by making certain your voice is heard – no matter what. Be your own advocate.
For educational purposes only. This is not Legal Advice. No Attorney/Client relationship has been established.