FWB Probate, Preparation of Wills, and Estate Planning

A will is a legally binding document that states how to handle your estate upon your death. It is also a planning document that is updated as your life changes. When we are young, we rarely think about estate planning. However, it should be thought about more often, especially if you have children. A will allows you and your spouse to specify who takes care of your children in the event of your death while they are still minors. In the absence of a will, the court will appoint a family member of their choosing to raise your children.

All estates go through the probate process with or without a will. However, having a will speeds up the probate process by informing the court how the estate is to be divided. With a will, the court simply administers your estate in accordance with the will. Without a will, known as dying intestate, the court decides how to divide your estate in accordance with Florida’s Intestacy Laws. Dying intestate can cause lengthy delays and incur the additional costs of a probate litigation attorney should contested situations arise.

If real property is owned in Florida by a non-resident of Florida, then dying without a will becomes very complicated. Even with a will, it requires Ancillary Proceedings, unless your Estate Planning attorney has advised you how to avoid it. At Anchors Smith Grimsley, we have years of experience with setting up property ownership in Florida so that non-residents can avoid Ancillary Probate proceedings and unnecessary expenses. For instance, under Section 733. 6171 of the Florida Probate Code, the fees that probate attorneys can reasonably charge for probating an estate, including ancillary estate fees, begin at 3% of the value of the probate assets located in Florida. This means that if you or your parents have a home valued at $300,000, whoever inherits that home might be paying probate fees of $9,000.00. Sometimes, a living trust is a way for non-Florida residents to handle real estate owned in Florida, as they avoid probate. Our trust lawyers can help you understand how this works and whether or not it is right for your situation.

Our Estate Planning attorneys in FWB help you to prepare your will so that the value of what you leave to your family and/or charities reduces the value of your estate when it is time to pay estate taxes. We will help you to minimize estate taxes and to appoint a good Personal Representative. Your Personal Representative should be someone who is honest, trustworthy, organized, and knowledgeable about what must be done. This may or may not be a family member. That is entirely up to you as long as you appoint a Personal Representative in your will. This person pays off bills, cancels credit cards and notifies your bank(s) and other business establishments of your death. We can execute your estate for you or help the person you appoint to administer your estate.

Many people decide to put their assets in a living trust because it avoids probate. If you consult one our Fort Walton Beach trust attorneys, you may decide that a living trust is the way to go. Alternatively, you can opt for a combination of a living trust and a will. A living trust sometimes cuts the time needed for the distribution of assets to a few weeks, which can greatly benefit those you leave behind by allowing them immediate access to the funds of the Trust. A major difference between a will and a living trust is privacy. A living trust is not made public at the time of your death, so your estate is distributed without being made public. A will is a public record, so all transactions are a matter of public record. A living trust attorney can aid you with making the document official and covering all your bases. Notably, both a will and a living trust allow you to choose a guardian for your children in the event of your death.

When one person wants to give another person authority over all of their legal affairs, the maker of the power of attorney is now known as the “principal.” The person receiving the right to act on their behalf is known as the “agent.” What authority is given from the principal to the agent varies. The powers of attorney can be very broad or very limited in scope. For powers of attorney to be considered legal they must be in writing and the principal (the person initiating the document) must be an adult of sound mind. Any mental incapacity due to illness, age or another cause, means that person is not legally allowed to draw up power of attorney documents.

In Florida, even if the principal becomes incapacitated, durable power of attorney means the agent can continue exercising authority. To attain durable power of attorney, one must be a competent adult and the document must be signed in the presence of 2 witnesses and a notary. There is also General Power of Attorney which is more limited than a durable one. Authority terminates as soon as the principal becomes incapacitated. Consulting with lawyers for power of attorney, such as those at ASG Legal, should help clarify any questions you may have in the difference between the two. The powers granted from the principal to the agent in all power of attorneys terminate upon the death of the principal.

A power of attorney can be used to give another the right to sell a principal’s property; such as a house, a car, or other transactions. When you decide to create a Power of Attorney for someone else, you may grant them access to your bank accounts and the power to sign contracts for you. Often, when someone has major health issues or has declining mental abilities, they will need someone else (usually a family member) to become power of attorney for them. This may lead to this person becoming durable power of attorney for finances, and/or durable power of attorney for healthcare. Lawyers that handle power of attorney can also discuss with you or a loved one everything you need to know about a living will power of attorney. Healthcare power of attorney responsibilities include only those acts specified and any actions necessary (within reason) to give effect to those specified acts.

There is one more area applicable to powers of attorney that we should discuss here. That is the debate between a living will vs power of attorney. In Florida, ‘health care advance directives’ can be either a living will or a health care surrogate designation. Both are looking at what could happen in advance of any incapacity or need. For anyone unable to communicate with doctors, a durable power of attorney for health care and a living will are legal methods to ensure that their needs are met. If a durable power of attorney specifies health care decisions by the agent, that person has the authority to make health care decisions for the principal. A living will is for end of life situations where the principal’s health care provider has determined that there is no chance that the principal has a chance of a meaningful recovery and the principal is being kept alive by artificial means. The living will allows the principal to designate an agent to make the decision on whether to keep the principal alive through these artificial means or to take the principal off of these life prolonging devices. Understanding powers of attorney can be tricky for most people, especially as it is required at a time that is necessarily challenging. Professionals well versed with powers of attorney can help.Contact ASG Legal as soon as possible if you are in need of a lawyer in FWB. Power of attorney can be a difficult and tedious process, and we are ready to put our over two centuries of combined legal experience to use for you.