Estate Planning - FAQs

Broadly speaking, an estate plan is the set of written instructions you leave behind that govern what happens to your assets upon your death. An estate plan may also include instructions pertaining to your desired medical care in the event you become incapacitated and cannot make or communicate decisions on your own. While each person’s circumstances are different, it is generally advisable to establish an estate plan to ensure that your specific wishes are carried out upon your death, rather than relying on the default provisions of Florida law that may not accord with your actual wishes.

Again, while each person’s circumstances are unique, such that what makes sense for one person might be substantially different from what makes sense for another, the documents that are often included in a strong estate plan include a Last Will and Testament, Revocable Living Trust, and documents called “advanced directives,” such as a Durable Power of Attorney, Health Care Surrogate, Living Will, and HIPAA Release.

While a revocable living trust may not make sense in all circumstances, it can be a powerful tool in your estate planning arsenal. For instance, a revocable living trust may help avoid probate altogether (as assets titled to a trust are not considered probate assets), and may help provide a degree of creditor protection for your beneficiaries.

In a Last Will and Testament, you may name the person or persons whom you want to serve as the personal representative(s) (what we call the “executor” in Florida) of your estate, who will be responsible for managing the affairs of your estate and ultimately distributing your probate assets to your beneficiaries. Similarly, in a Revocable Living Trust, you may name the person or persons whom are to serve as trustee(s) of the trust. Your trustee is responsible for managing the affairs of the trust and ultimately distributing the assets of the trust to your beneficiaries. As personal representatives and trustees take on fiduciary responsibilities to your beneficiaries and may be responsible for administering assets with substantial value, you should choose trusted adults to serve as your personal representative and/or trustee. Note, however, that in Florida, your personal representative must meet certain residency/relationship requirements in order to be qualified to serve in that role.

Some assets, such as bank accounts and life insurance policies, can pass outside of the probate process by designating beneficiaries on those assets in the event of your death. For instance, if you have validly designated beneficiaries on your bank account, that account may pass to those beneficiaries without the need to subject the account to probate. Beneficiary designations can be an important tool in your estate plan to avoid probate and otherwise pass your assets to your loved ones more quickly after your death.

If you already have an estate plan in place, it is good practice to review that plan with an estate planning attorney prior to, during, or after major life events, such as marriage, divorce, a birth, a death, or a substantial purchase (such as a new home). Even if a major life event has not taken place, but you have concerns about your current plan or otherwise just want to update it, it may be advisable to speak with an attorney about your options.

If you become incapacitated, perhaps permanently, prior to executing an estate plan and subsequently pass away, Florida law supplies default provisions as to what will happen to your assets. However, the default provisions established under Florida law may not accord with your actual wishes, so it is important to plan ahead and get an estate plan in place to ensure that your wishes are carried out.