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Estate Planning – FAQs
- What is Testamentary Capacity?
- What is an Advance Directive?
- What Is a Health Care Surrogate Designation?
- What is a Special Needs Trust?
- What Is Required for a Will to Be Valid? Can I Write My Will at the Last Minute? Are Handwritten Wills Enforceable in Florida?
- Can I Write My Will in a Foreign Language, Such as Creole, Spanish, or Russian?
- What Is an Estate Plan, and Do I Really Need One?
- What Documents Might Be Included in an Estate Plan?
- Do I Need a Revocable Living Trust if I Already Have a Last Will and Testament?
- Who Should Be My Personal Representative (Executor) And/Or Trustee?
- How Do Beneficiary Designations Fit Into an Estate Plan?
- How Often Should I Update My Estate Plan?
- What Happens if I Become Incapacitated Prior to Executing an Estate Plan?
1. What is Testamentary Capacity?
In order to make a valid will or trust which disposes of one's assets upon death, one must, at the time of execution of the document, be capable of generally knowing and understanding: (1) the nature and extent of one's property, (2) the natural object of one's bounty in terms of who is receiving the property, (3) the disposition being made, and (4) how all of these elements relate to one another to plan the disposition of one's property.
2. What is an Advance Directive?
Florida law defines an "advance directive" as "a witnessed written document or oral statement in which instructions are given by a principal or in which the principal's desires are expressed concerning any aspect of the principal's health care or health information." Fla. Stat. § 765.101(1). In other words, an advance directive is a declaration about how you want medical decisions to be made if you cannot make them yourself. An advance directive "includes, but is not limited to, the designation of a health care surrogate, a living will, or an anatomical gift." Fla. Stat. § 765.101(1).
3. What Is a Health Care Surrogate Designation?
A health care surrogate designation is a document naming another person to be your representative and make medical choices for you in the event you cannot do so yourself. A health care surrogate designation can be beneficial to ensure you are cared for in a manner that is consistent with your wishes in the event you are incapacitated and unable to express your wishes.
4. What is a Special Needs Trust?
A special needs trust is established to hold funds for the benefit of people with special needs and disabilities. These trusts are created in a manner that allows the beneficiary to remain eligible for government benefits, like Supplemental Security Income and Medicaid. This type of trust is able to help individuals with disabilities meet their particular needs, create more comfortable lives, and serve as a safety net in the event they need access to additional funds.
5. What Is Required for a Will to Be Valid? Can I Write My Will at the Last Minute? Are Handwritten Wills Enforceable in Florida?
For a will to be valid in Florida, it must be written, signed at the end by the testator or by someone at their direction in the presence of two witnesses, and witnessed by two witnesses, who must sign the will in the presence of the testator and the presence of each other. Florida does not recognize oral or handwritten wills (though a handwritten will which otherwise complies with the requirements noted above may be valid).
6. Can I Write My Will in a Foreign Language, Such as Creole, Spanish, or Russian?
Yes. However, Florida Statute Section 733.204 is clear that "No will written in a foreign language shall be admitted to probate unless it is accompanied by a true and complete English translation." This means that if you executed your will in any language other than English, you must have it translated in order for it to be admitted to probate after your death.
7. What Is an Estate Plan, and Do I Really Need One?
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.
8. What Documents Might Be Included in an Estate Plan?
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.
9. Do I Need a Revocable Living Trust if I Already Have a Last Will and Testament?
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.
10. Who Should Be My Personal Representative (Executor) And/Or Trustee?
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.
11. How Do Beneficiary Designations Fit Into an Estate Plan?
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.
12. How Often Should I Update My Estate Plan?
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.
13. What Happens if I Become Incapacitated Prior to Executing an Estate Plan?
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.
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