what is an estate plan, and how could I benefit from having one?
Every estate plan will be different in that it is specifically tailored to the needs of the client. Some of the legal documents that are typically utilized are a will, a trust, a durable power of attorney, and a healthcare surrogate.
An estate plan can help to strategically minimize the size of your estate subject to probate upon your death. This can result in a reduced tax burden and a simpler, less costly probate process. A well tailored plan can provide for the management of your assets in the event you become incapacitated and can allow you to choose the legal guardians for your minor children if you pass away before they reach adulthood. Your estate plan can specify at what age your heirs will receive distributions and can dedicate assets for particular uses, such as education. Your estate plan can also help keep your assets in the family by preventing loss to a child's spouse in a divorce.
It's important to see a qualified attorney with experience in estate planning to be certain that your will is valid and enforceable and your wishes are clearly defined insofar as what should happen with your property, your business, your minor children and your extended healthcare should you pass away or become incapacitated.
What is Probate?
Most basically stated, probate is the process of changing title of assets that were solely titled in the name of a decedent, into the name of beneficiaries. Assets that are not titled solely in the name of the decedent will not pass through the probate process. This can include assets such as jointly held bank accounts, POD bank accounts, beneficiary designations on insurance policies, real estate that is jointly owned with a spouse, and assets held in trust.
Once all the probate assets of the decedent are identified and gathered, then payments can be made to satisfy creditors' claims and pay off the debts of the decedent. The final step is to distribute the remaining assets to the beneficiaries of the estate.
There are advantages and disadvantages to the process. The drawbacks generally are that it can be costly and time consuming. Among the benefits of taking the estate through probate is the fact that it limits the window of time for which creditors may pursue claims against the estate to just three months. Additionally, it can give you the opportunity to challenge a will if you believe it to be invalid or erroneous because, for insance, your loved one was not of sound mind or was under undue influence when drafting the will.
What is the benefit of having a durable power of attorney and a healthcare surrogate?
A "durable power of attorney" is the legal document you can use to designate another person to have the authority to handle certain tasks on your behalf, such as making financial decisions, in the event you are not able to make these decisions yourself.
A "Florida designation of healthcare surrogate" acts like a medical power of attorney insofar as you can use it to designate a surrogate and an alternate surrogate to make medical decisions on your behalf should you become incapacitated.
Having these documents in place can give you peace of mind, knowing that if for any reason you were to become incapacitated, your family or the person of your choosing is empowered to make the necessary choices in your best interest.
I have recently moved to Florida, and I previously executed estate planning documents in another state. Do I need these to be reviewed?
The law of wills, trusts, and estates is state specific. Therefore, when you change residence from one state to another, it may be necessary to make certain changes.
Please contact us for a thorough review of your existing estate planning documents and the attorneys at Harvin & Harvin, LLP, can ensure that your assets remain protected by bringing your plan into compliance with Florida law.
How often should my estate plan be updated?
We encourage clients to think about reviewing their estate plan once a year or at least whenever there are changes to tax legislation or changes in your personal life, such as marriage, birth of a child, purchases of real estate, or when you start a corporation.
If you have already created an estate plan with our office in the past, we invite our past clients to come in for a free consultation to discuss how an update and modification of your plan may best serve your needs.
When a loved one has died, how do i know that his or her final wishes are observed?
The only way to be certain that your loved one's wishes are fulfilled is to be involved in the probate process. With the aid of competent counsel, you may be entitled to accountings of the assets, notice of any debts being claimed as due from the estate, and a report on the final distribution of the estate.
I have been named personal representative or executor for an estate of a deceased. What are my responsibilities?
If you have been named as Personal Representative or Executor for the estate of a Florida resident, this means you bear the legal right and responsibility of ushering the probate assets of the deceased through the process of distribution. The costs of the process, including legal fees and court costs, are to be paid out of the assets of the estate and not personally by the Representative. The procedure can be complex, and the attorneys of Harvin & Harvin, LLP, are available to walk you through the process.
If you have been named as Personal Representative or Executor for the estate of a non-Florida resident who passed away owning Florida property, then a process called Ancillary Probate Administration becomes necessary. If the deceased resided in another state but had, for instance, a second home in Florida, the disposition of that Florida real estate must be handled by a Florida attorney subject to Florida Probate laws, rules, and procedure. The attorneys at Harvin & Harvin, LLP, have represented clients with estates that contain property across Florida, the United States, and the world. If you have questions about your role in the administration of the estate of a deceased, please contact us at: