General Information

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Naming Alternates!

Name Alternates! I just had a woman come into my office telling me that she is her mother’s power of attorney. However, she, the daughter is ill and wants to name her sister to take over for her. Mom has Alzheimer’s and is not capable of signing new documents. However, daughter is not legally able to delegate her duties as power of attorney to someone else.

Mom should have named one or more alternates in the power of attorney in case her daughter was unable to perform the duties.

What happens now? Mom might end up needing a court appointed guardian.

Always be sure to name alternates in all of your documents (will, trust, health care surrogate and durable power of attorney), and if you have people (vs. a trust) named as beneficiary on your financial accounts also name alternates.

Handwritten Wills

Is a handwritten Will valid in Florida? Sure is! As long as it is signed by the testator (that’s the person making the Will) at the end of the document, in front of two witnesses who also sign (all 3 must be in each other’s presence at the time of signing). I don’t advocate that anyone draft their own Will because self-prepared Wills are always problematic for lots of different reasons. But if you are in a pinch, and perhaps you have some legal guidance, you can handwrite your Will.

What is a health care surrogate?

What is a health care surrogate designation (aka healthy care proxy, advanced directive or medical power of attorney) and what happens when you don’t have one? A health care surrogate designation is a document wherein you appoint someone to make health care decisions for you if you become incapacitated.

What happens if you don’t have one of these? Florida law says the following people (in the designated order) can make a health care decision for you:

1) Court appointed guardian
2) Spouse
3) Adult child, or if there is more than one adult child, a majority of the adult children who are reasonably available for consultation
4) Parent
5) Adult sibling, or if more than one sibling, a majority of the adult siblings who are reasonably available for consultation
6) An adult relative who has exhibited special care and concern, who has maintained regular contact and who is familiar with the person’s activities, health, and religious or moral beliefs
7) A close friend
8) A licensed clinical social worker

If you don’t want any of the above people making medical decisions for you, then you’d better execute a health care surrogate designation.

Also included in most health care surrogate designations is a HIPAA release, which is where you authorize someone to access your medical information. Believe it or not, even though all of the aforementioned people can make medical decisions for you, they don’t have any access to your medical information . . . . . . go figure. Moral of the story, it’s best to have a health care surrogate designation in place.

Should I have a Durable Power of Attorney?

What is a Durable Power of Attorney and Should I have One? (Part I)
In my opinion, a durable power of attorney is often times the most important estate planning document that you can have. It’s also one of the most abused documents (more about that in Part II). A durable power of attorney (DPOA) gives someone authority to make financial decisions for you, such as paying your bills, talking to your insurance company or credit card company, selling property etc. If you become incapacitated and don’t have a DPOA, the only way someone can help you is to petition the court to become your guardian. Guardianships are intrusive, expensive and time consuming. Don’t end up in guardianship court . . . . . . . . get a durable power of attorney BEFORE it’s too late.

Do you have a safe deposit box?

Safe deposit box cause a lot of headaches when the box owner dies. Certain people (such as a spouse, a parent, an adult child/grandchild, or a person named as a personal representative in a Will) are allowed to open and look in the box, but only to remove a Will or burial plot or life insurance policy. If you’re not one of the designated people, then you have to get a court order to open the box. Nobody is allowed to remove any contents unless they are a joint owner of the box. The only way to remove the contents is to open a probate administration. This can be very frustrating if you live locally, but imagine if your family members live in another state. Safe deposit boxes are good for items you cannot replace, such as jewelry, collectibles etc. If the item can be replaced (i.e., passport, deed to your house, car title etc) it does not need to be in a safe deposit box. Close your box if you don’t need it and safe your family members the headache and expense of dealing with the box.

Durable Power Of Attorney For Your Parents

Trust & Estate Tip of the Day: Do you have a Durable Power of Attorney for one or both of your parents? Are you also a joint owner of their bank account for convenience purposes? If so, you’d better confirm with the bank that you are actually a joint owner and not just listed as the power of attorney (which is called attorney-in-fact). I see this happen often – the (adult) child thinks he/she is a joint owner of the bank account, mom/dad dies, and all of a sudden the account has to go through probate because it really wasn’t a joint account, the child just had access via the Durable Power of Attorney.

Does a life estate avoid probate?

Trust and Estate Tip of the Day:  A friend asked if a life estate avoids probate. The answer is yes it does. As a little background, a life estate is a way of owning real estate. Title is split between two parties, the life tenant and the remaindeman. When the life tenant dies, title automatically passes to the remainderman. Under the right circumstances, this is a great tool to avoid probate. But there are several drawbacks of this type of ownership. For instance, sometimes the remainderman dies before the life tenant, and then a probate is needed for the remainderman. Even when using enhanced life estate deeds (aka lady bird deeds) problems can arise. In most circumstances, a revocable trust is a much better choice than a life estate deed.

You have a Last Will, will you avoid Probate?

Trust & Estate Tip of the Day: You have a Last Will and Testament, so your estate will avoid probate . . . . WRONG! Having a Will does not keep your estate from going through the probate process. Probate is a court proceeding which is necessary when you die owning assets that don’t pass to someone automatically. What passes automatically? Jointly owned assets, financial accounts that name a beneficiary, and assets titled in a trust do not have to go through probate. All other assets that you own typically will go through probate, even if you have a Will. A revocable trust is a simple way of avoiding probate, especially for real estate. Naming beneficiaries on all financial accounts (which was the subject of a prior post) also helps tremendously.

Where is the best place to store your estate planning documents?

Trust & Estate Tip of the Day: Where is the best place to store your estate planning documents? Well, that depends on the type of document and your specific circumstances. But one thing is for sure, you want your health care advanced directives to be easily accessible by your designated surrogate(s). Give copies of these documents to your surrogate(s) – which might include hard copies or electronic copies (such as email) or if you feel comfortable then store them in the cloud. Your surrogate may need to make a quick decision and will need to show that he/she has the legal authority to do so. DO NOT store your health care advanced directives in a safe deposit box. They do you no good there. Where should you store your will? Stay tuned 

Estate Planning and Probate FAQ’s

  • I have a Will so my estate won’t go through probate
    • Not true. Assets pass through probate when the title needs to be transferred. It doesn’t matter if you have a Will or not. Examples of assets that don’t pass through probate are assets that are jointly owned with rights of survivorship, assets with beneficiary designations, and assets titled in a Trust.

 

  • My Will controls the disposition of all of my property
    • Not true. You Will ONLY controls disposition of probate assets.

 

  • I am married, so I have legal authority to make all decisions for my spouse and my spouse’s assets
    • Partially true and partially wrong. Spouses have equal control over some joint assets, such as bank and brokerage accounts. Spouses do not have control over jointly owned real estate – for instance, if your spouse is incapacitated due to illness or injury, you cannot re-finance or sell your home without a valid durable power of attorney or a court appointed guardian. Additionally, spouses do not have any access to accounts solely titled in the other spouse’s name.

 

  • Estate Planning is for wealthy people only
    • Couldn’t be more wrong. At a minimum, everyone should choose who will make medical and financial decisions for them by way of a Health Care Directive and Durable Power of Attorney, and many people should have a Will and even a Revocable Trust in place to ensure that your hard earned assets pass to the appropriate people outside of the lengthy and expensive probate process.

 

  • Estate Planning is for old people
    • Sadly, you don’t have to be old to become ill and/or pass away. The idea is to have documents in place “in case” tragedy strikes.

 

  • I am not wealthy enough to have a revocable trust
    • One of the main purposes of a revocable trust is probate avoidance. It also gives creditor protection to your beneficiaries, and it provides for contingencies in the event a beneficiary should predecease you. Wealth is definitely not a requirement for a revocable trust.

 

  • I have access to my college student son/daughter’s medical information because I still support them financially and I’m paying for college
    • Wrong – Once they turn 18 years old they are adults and parents have no access to their medical information due to HIPAA.

 

  • My kids all get along so I know there won’t be any problems after I die
    • If only this were true . . . . . . . .

 

  • I think I need an irrevocable trust
    • Probably not. Most people need a revocable trust. Irrevocable trusts are used in certain cases, but the majority of people want to retain the power to modify or revoke their trust.