For many residents of Florida, estate planning is something that rarely receives much thought. That can be a huge mistake, of course, since few of us ever leave this Earth on our own timetable. Just consider this: if today were your last day of life, would you spend the day secure in the knowledge that you had done everything you could to ensure that your estate was in order? Would you be content with your efforts to plan for the care and wellbeing of those you’re leaving behind? Sadly, far too many people would find themselves wondering why they had put off estate planning for so long. If you’re among their numbers, then it’s past time that you began to consider your own estate – and that means that there are certain critical things you need to know about Florida probate law.
Before we begin, however, it is important to stress the fact that everyone should have some sort of estate plan in place. A plan can ensure that your family is not left with a whole host of legal complications that would only add to the grief they feel due to losing you. A well-conceived estate plan can also ensure that they are properly cared for after your death. More than fifty-five percent of Americans never even bother to draw up a will. Do your family a favor and be part of that other forty-five percent.
Wills Are Critically Important
If you pass on without a prepared will in the state of Florida, the state’s intestacy laws come into play. Under those laws, your assets will be dispersed to your heirs – beginning with your spouse and children, and then your parents, siblings, and other relatives if you have no spouse. Where things get really tricky is when you have no close relatives living at the time of your death. When that happens and you have left no will behind, the state gets your assets. In addition, the care of your minor children may end up being determined by the court rather than left to your discretion.
By preparing a legally enforceable last will and testament, you can avoid those undesirable outcomes and ensure that your last wishes are respected. You can outline where your assets go when you die, name a guardian for any minor children, and select someone to oversee the execution of the will.
Florida Probate Law Details
Florida probate proceedings involve court-supervised validation of the will, the designation of a personal representative, the gathering of all assets, payment of outstanding debts, and dispersal of any remaining assets to beneficiaries and heirs. The determination of which assets go through probate is based on the titling of that property. Trust assets, beneficiary-designated assets such as life insurance payouts, jointly-owned property, and life estate deeds are all considered non-probate assets under Florida law.
Assets subject to probate proceedings include solely-owned real estate, his or her bank accounts, and insurance policies that have no listed beneficiaries. It is important to note that the existence of a will does not in any way affect whether or not an estate is subject to probate requirements. Probate is wholly determined by the nature of your assets and how you chose to title them.
Florida probate proceedings can involve several different types of processes. These include formal administration, which is used in most common estate dispositions, summary administration which is typically used in cases where the deceased passed away more than two years prior to the proceedings with assets of $75,000 or less, and ancillary administration that is used to handle estates for non-residents.
Don’t Forget Florida’s Living Will Provision!
Florida has living will provisions that you should take advantage of as well. Living wills provide instructions for your end-of-life care in the event that you become incapacitated with no expectation for recovery. Often times, families struggle to make decisions for patients who can no longer do so themselves. Living wills eliminate that problem and remove any need for argument or disputes. Under current Florida law, you can include instructions to forego life support in your will, for cases where your condition is considered terminal.
Health Care Surrogates
Florida probate law also provides you with the option to name someone to serve as a health care surrogate. That person can make decisions on your behalf when you are ill, seriously injured, or mentally incapacitated. There are restrictions, of course. For example, your surrogate cannot also serve as a witness to the signing of the document. That person can, however, be a close friend or even a relative should you so choose. Your surrogate documents should include not only the identity of the representative, but the procedures you are willing to receive in the even that medical treatment is necessary.
Power of Attorney for Finances
Incapacitation can often lead to an inability to manage finances. Florida law allows you to assign someone financial power of attorney authority that can go into effect at signing if you so desire. In most cases, however, this is something that you would want to set up in advance of any incapacitation, using a Durable Power of Attorney option. This will allow your designated agent to make monetary decisions just as you would. It falls to you to determine whether you want any financial power of attorney to become active at signing or specifically note in the document that such power is only granted upon incapacitation.
Naturally, these details only scratch the surface of Florida probate law. The fact is that proper dispersal of any estate is a complex process governed by a whole slate of complex laws and regulations. As a result, it can be difficult for most people to navigate the complexities of the legal requirements and ensure that their estate plan is adequate for their needs. The best way to avoid those complexities is to rely on the advice and services of a competent Florida estate planning attorney. Contact Robert Kulas Attorneys at Law in Port St Lucie and Vero Beach FL today to discover how the best legal services can help you make sense of your estate planning needs.