Frequently asked questions and answers (answers are the opinions of this attorney taking into consideration the laws of Florida):
Why should I hire an attorney and pay fees for a consultation when I can more cheaply buy a will, trust, power of attorney, or living will at an office store or order one from a document assembly service?
Our society has deemed it necessary to insure that people providing legal services are well educated, tested, and morally fit to provide those services. The practice of law by unlicensed persons is illegal, but it seems quite difficult to enforce. You do not want to use a do-it-yourself kit for legal services any more than you want to use a do-it-yourself surgery kit. As an attorney I can help you understand the plusses and minuses of your planning. To make a consultation be its most efficient have the names, addresses, and phone numbers of immediate family members, intended personal representatives, intended guardians, and beneficiaries already written down to give to me. Also, have an understanding of how you would like your property disposed of upon your passing away and, if you have a spouse, have a plan for the contingency of your spouse predeceasing you.If you use a document assembly service to produce documents for you, who will supervise their proper signing and witnessing? Please be cautioned, your legal documents must be properly executed in order to have legal effect. Only an attorney at law may opine regarding the proper execution of your legal documents. A notary may observe the blanks being filled in, may observe people signing documents, and may give oaths and affix his or her notarial seal to an affidavit or acknowledgement but he or she will not be able to opine that your documents as signed will be legally enforceable upon your death or disability.The internet companies seem to offer what I would describe as document assembly services. They seem to wish to appear not to provide legal services, which may help avoid being charged with the unlawful, unlicensed practice of law. They cannot advise you about the ramifications of the particulars of your documents. So you are left alone to determine the legal pluses and minuses of the decisions you are making by choosing various provisions in the documents and then hopefully executing the documents in such a way as to have binding, legal effect. I could not in good conscience do anything but try to steer you away from these document assembly services. Please be careful. I recommend consulting with and using an attorney at law who is licensed to practice law in the state of your primary residence to build a plan for death and disability with your input and to advise you on how to put that plan into effect.Some people use document assembly services because they are afraid of having to pay a large amount of attorneys fees to conduct simple planning. Such is not the case with my services. The first fifteen minutes of our consultation (by phone or in person) is free. Simple documents and some commonly used modifications to them are available at a set fee. More complex planning is charged at a reasonable hourly fee (rounded up to the next 0.1 hr interval). Typically a couple's simple wills, durable powers of attorney, designations of health care surrogate, and living will costs a total of $787.50 (assuming each spouse's documents are "mirrors" of one another).
If I move to Florida from a different state where I already competed my estate and disability planning documents do I need to redo them now that I am in Florida?
If you have shifted your primary residency or domicile to the State of Florida, then your Will should be reviewed by an attorney at law admitted in the State of Florida, however, you need not redo all your legal planning documents merely because you've changed your residence to Florida. Be cautioned, there are two issues that face both new and established Florida residents. First, Florida has particular rules about who may serve as your Personal Representative in the probate process of your Will. In some states that position is known as an Executor. In Florida your Personal Representative must be another Florida resident, a blood relative, the spouse of a blood relative, or a Florida Trust Company. A named Trustee need not comply with the personal representative requirements. If your Will does not comply, then the Court will appoint a responsible person to act as your Personal Representative. Second, of concern is Florida's special protection of your Florida Homestead, if any. There sometimes appears in Wills a provision to pay debts and that provision in particular, or perhaps terms elsewhere in the Will, may contain language that indicates that you direct your Florida Homestead be sold or otherwise serve to pay debts, thereby waiving your special Florida Homestead protections under the Florida's constitution and laws.Should I have a trust agreement and fund it now to avoid probate?
This is a complicated question and would be answered more fully in consultation. Typical situations calling for the use of a funded revocable trust to avoid probate include ownership of real estate in more than one state, concerns about probate delays and expenses, and strong feelings about the right to privacy. A typical married couple owns their property jointly with rights of survivorship (or as tenants by the entirety, which accomplishes the same thing) and so when the first one passes there is often no need for probate. The big question is what happens upon the second passing.There are some benefits to using a funded trust prior to your passing away. The probate process takes somewhere between nine months to a year to complete if all goes in a routine manner. Complications could cause it to last longer and if you are hoping for prompt re-titling of titled properties you may be in for a disappointment. Funded trusts do not require re-titling through the court. Concerning privacy, people may go to the probate court to view many of your documents and thereby your properties and debts can be disclosed. Trusts are private. It is important to remember that property must be re-titled with the trustee of the trust prior to your death in order to avoid probate. That means doing much more paperwork and more fees now to avoid costs and delays later. Of course, the probate process is well known to be replete with paperwork and opportunities for the generation of fees.On the other hand some attorneys recommend probate because it discloses and fixes debts within a three month period following proper publication of notice as opposed to two years after the date of death if notices of probate are not properly given. Some attorneys recommend probate of a homestead for this reason and to get a court order giving final determination that a real property is the homestead "officially." However, people realistically having no significant creditors and/or having the concerns mentioned in the first paragraph hereof should seriously consider using a funded revocable trust. Please be cautioned, claims that debtors can avoid their debts by using trusts are usually "bunk." If it sounds too good to be true, it usually isn't true. I have IRAs and a Trust, may I designate the Trust as a beneficiary of those IRAs?You may designate a trust as the beneficiary of an IRA, however, this creates complications in planning. The federal government wants to collect taxes on this account sooner than later because from the government's perspective IRAs were created to help the funding individual pay for retirement expenses and not to transfer wealth from generation to generation. Spouses are typically an exception to that approach and there are usually serious benefits to naming a spouse as beneficiary of the IRA. The so-called SECURE Act has created more governmental controls and consequences related to IRA beneficiary designations. It is best to consult with a qualified, certified financial planner about how to manage your income needs in retirement and how to use your power to name beneficiaries decades before you reach retirement age. This area of the law is subject to frequent changes and therefore if you have made extensive use of it during planning you may need to make frequent reviews and changes to your estate planning documents and IRA/401(k) beneficiary designations
What happens with my Will after I pass away?
Your Personal Representative must admit the Will to the probate court. To do so he or she must "prove" the Will. Typically that means using live testimony of the witnesses or submitting their affidavits. Witnesses who have not signed an affidavit at the execution of your Will have to be willing and able to sign an affidavit after the fact or travel to the probate court where your Personal Representative seeks to admit your Will. Your estate pays for the witnesses' travel costs, assuming you can find those witnesses. This can be an iffy and expensive proposition because some witnesses may retire or pass away before you or may not be willing to volunteer to assist you. Do not lose your Will. The procedure for proving a lost Will is filled with uncertainty and potential expense. Losing your Will likely means losing your ability to control the probate process and disposition of your probate property/estate. If your Will was not executed along with a Self-proving Affidavit, then arrange for affidavits sooner than later and store them safely with your Will, or update and execute a New Will or Codicil to the Will and execute the proper affidavits at that time.
II thought all my property was governed by my Will, what assets are not subject to probate?
That is not an uncommon misconception. Only property that is solely owned by you is controlled by the probate estate (but see the caution below). Your Florida homestead property is often not subject to probate. Real property owned by a husband and wife or by persons as joint tenants with rights of survivorship is not subject to probate. It goes to the survivor. Financial accounts with joint owners pass automatically to the joint tenants and do not go through probate (mere joint account ownership is sometimes the cause of litigation after death). Beneficiaries in insurance policies and retirement accounts like IRA's and 401k's get the property directly and not through probate. Property held by a trustee prior to your death is not subject to probate. Of course, you can make your probate estate the beneficiary if you wish. Your share of property held as a tenant in common will be subject to probate. Caution, property you own (in substance) at your death, including property held by yourself as a trustee of a so-called self settled, revocable or settlor/grantor trust, may be subject to the expenses and debts owed by you or your probate estate (including death and other taxes), however, the probate process in that case would not be necessary to establish title or who owns the property after your death. Also, personal representatives often include the homestead in some aspects of the probate process in order to obtain an order from the probate court declaring a particular residence to be in fact the "homestead."
Why do I need a Will or a Trust to manage the property that is in my name at the time of my death upon the unavoidable occurrence of my passing away?
It is not absolutely necessary for you to have a Will or a Trust to manage your property after you pass away, however, if you do not have a plan that is evidenced by your Will, Trust, Joint Accounts with Rights of Survivorship, Joint Tenancies of Real Estate with Rights of Survivorship, Transfer on Death, and beneficiary designations, then the State of Florida has a plan and you may not agree with it. Property that is subject to probate upon your death will be distributed to descendants through the laws of intestacy.
The most surprising thing is that property that is held in your name alone upon your death will, in the absence of a Will, be split between your spouse and your children unless all children are the mutual children of the testator and the surviving spouse. That comes as a surprise to your surviving spouse if any of the children are non-mutual. A Living Trust or a Trust within a Will can take care of a surviving spouse's needs and then distribute assets and accumulated income, if any, according to your intent.
Also, please note that if the children are minors and directly receive an inheritance such will require guardianships to be open for them to manage their money until age 18 yrs., at which time they get their share to do with it as they wish. A Will can contain a trust called a testamentary trust, or can work in conjunction with a revocable trust in existence at the time of your death, to control how your probate assets are distributed after your death.
Please note, though, if a testamentary trust is used the properties first must go through probate before being distributed to the testamentary trustee for management. A revocable or irrevocable trust (made while you are alive and therefore categorized as living trusts) can also be funded with and thereby control assets that you transfer to it before your death. Caution, all your property, including assets held in trust and joint accounts, is arguably subject to your probate estate debts. Creating and funding an irrevocable trust during your lifetime in some cases may avoid such from being subject to your debts following your death.
May an attorney represent both spouses? What if they are not in agreement on everything or if they do not trust one another?
An attorney may represent both spouses so long as they are planning in harmony together. That typically happens in planning for a couple's death and disability. Usually, the spouses serve as each other's personal representative and attorney in fact/agent upon death and disability; respectively. Sometimes there are internal conflicts of interest due to marital stress or due to there being children of one spouse and not the other. If the spouses cannot agree on a plan, then I would have to withdraw and the clients would then retain separate attorneys. They would still be responsible to pay for my fees earned up until the termination of our attorney-client relationship.
I'm not dividing my probate estate assets equally amongst my heirs, what should I do?
You should discuss your reasons openly and explicitly with your heirs. They should be understanding as long as your reasons are sound. In any case, such forecasting may prevent litigation.
I wish to have my trust principal preserved so that my children will eventually receive the value of the trust at the time of my death. I don't think my wife will understand, what should I do?
You must discuss this with your wife and children. Let your wife know first and then discuss it together with the children. In cases where there is tension between those who want to preserve the principal or corpus of the trust and those who wish to maximize income from the trust there is sometimes contention or litigation. Try to minimize any uncertainty by explicitly stating your intent in your trust document.
I want to disinherit an heir, may I do so? Do you charge extra to accomplish this task?
You may disinherit an heir but you should specifically mention the heir and note that you are disinheriting him or her. Don't just leave him or her out of the Will or Trust. Disinheriting an heir is a risky and iffy undertaking due to the prospect of litigation. As a result, special care needs to be taken in the preparation and execution of the legal documents. Also, draftng such a document exposes the attorney to risk of a malpractice action or other civil actions. All this potential contention and planning for such means that a much higher fee would be charged. Each disinheritance is unique and is not amenable to generalizations in terms of fees. Understand that disinheriting an heir may well result in litigation after your death with high attorneys' fees and costs. Disinherit only for the most serious of reasons. Attempt to mend personal rifts prior to passing. If a person is a spendthrift or owes many large debts, then a spendthrift/discretionary trust may be used to protect the principal/corpus of his or her trust, however, such cannot protect a spendthrift from child or spousal maintenance obligations. Also, disinheriting a spouse is even more difficult, especially in view of the spouse's ability to claim an elective share. Furthermore, special Florida homestead laws restrict what may be done with a residence that is a "homestead."
Why may I need a Durable Power of Attorney?
A Durable Power of Attorney (DPOA) is a power of attorney that survives your becoming incapacitated. If you do not have special language in a power of attorney, when you become incapacitated that power of attorney is no longer in effect. The DPOA is a very important document to help manage your affairs if you become unable to understand or communicate regarding your financial concerns. It is a necessary document in your planning for disability. Things you want your attorney in fact to do must be specified in the document so these typically list many things your attorney in fact may do on your behalf. Regardless of the list, your attorney in fact should not engage in self-dealing or cheat you of your money. Of course, like all relationships based on trust, a DPOA can be abused. Choose your attorney in fact after careful and complete consideration. Make sure your attorney in fact knows of his or her designation but you need not provide a copy of the DPOA or tell him or her your assets such as accounts and their numbers. Please note that upon your death all powers of attorneys cease to have legal effect in terms of present or future use. Past actions of the agent remain in legal effect.
Why may I need a Living Will also known as an Advanced Care Directive?
To give more control over your care at the end of your life. If you are concerned that life prolonging procedures will be foisted on you when you are incapacitated and terminal, which in turn may cause a long or longer stay in a nursing home, then this document will help protect against it. The Living Will, also called an Advance Health Care Directive, addresses itself to doctors and hospitals. Make sure your health care surrogate, attorney in fact, and doctor have a copy. Also, keep a copy on your person. However, if you update the document make sure you retrieve the old and replace it with the new document. You should also discuss making or not making a DNR (Do Not Resuscitate) in your medical files with your primary care and specialist physicians. A DNR is a much more drastic form of control. You could have a heart attack and otherwise be resuscitated, thereby living many more enjoyable years, but if you have a DNR then you will be allowed to permanently expire. A Living Will addresses the situation where you are and remain incapacitated despite your care provider's efforts and are in a terminal or so-called vegetative state.
Why may I need a Designation of Health Care Surrogate?
This document is like a limited power of attorney for health care. It permits your surrogate to make decisions related to your health care and in doing so gives much more power to your surrogate and addresses far more topics than the highly limited Living Will. It comes into effect even when you are only temporarily incapacitated and can now be made to be in effect while your have your capacity (if it explicitly so states). The Living Will also directs your surrogate about life prolonging measures. Make sure you give a copy of it to your designee.
Why may I need a Designation of Preneed Guardian?
The durable power of attorney can be superseded or supplemented by the court appointment of a guardian. This document will make it clear who you want to be your guardian. It typically would be the same person you have as your agent in power of attorney and/or the designee in your health care surrogate designation. This is of extreme concern to someone who never married or whose spouse has passed away or become incapacitated. Make sure you give a copy to your designee.
I am a young adult with no spouse or child, when and why should I consult with an attorney and have a Will or Trust drafted for me?
Young adults do not typically have much by way of property but they do have some property and some life insurance. Young adults do have definite ideas about to whom their assets should go when they pass away. They may be surprised to find that the "default" plan of the State of Florida may not agree with what they want to do. First, remember that you designate your beneficiary for insurance purposes. If you leave it blank, use your name or designate your estate as beneficiary, then your probate estate will administer and distribute the proceeds of the insurance policy. The "default" state plan is that if you are unmarried and have no children, then your probate assets will be distributed to your parents. A young adult may say that is great, that's what I would do anyway, and if so then no Will is needed to control the distribution. However, if your parents are divorced and you favor one parent over another, then that will not be reflected in the state's plan for your probate assets. Also, many young adults want their siblings to receive their property and such would require you to execute a Will to accomplish it. Lastly, if you have considerable assets and you have concerns about protecting your parents from being spendthrifts or protecting your siblings from having your probate assets given to them subject to a possible distribution in divorce, then you should not only draft a Will but also you should draft trust provisions to protect them.
Also, it is very important to note that if you have a spouse and children, then your probate assets will be split evenly between them unless all of the children are the mutual children of you and your spouse. Minor children receiving a devise will cause financial guardianships to be established for each child, which is an expensive hassle over many years. Then when the children turn 18 years old they receive the assets and accumulated income free from any controls. I can help you by drafting a Will with a children's trust and advising you on how to designate beneficiaries on insurance policies and retirement accounts.
Do not forget that planning should be done for disability as well. This planning should include your Durable Power of Attorney, your Designation of Healthcare Surrogate, and may include a Preneed Guardianship Designation, and a Living Will. These may be of more importance to a young or mature adult because these documents and the choices you make in them may control your well being for many years to come and determine how you will face a potential end of life situation. So, even if you are okay with the "default" probate plan of the State of Florida and do not want a Will, you should have your disability planning documents in proper order and legal effect. Always make sure your friends, loved ones, and relatives know what you wish to do if you face a terminal, vegetative, or other end of life situation to avoid having your life unnecessarily prolonged (or shortened).
What do I do with my documents after I sign them?
I recommend putting them in a resealable plastic bag and then placing them in a relatively safe place like a fireproof filing cabinet or fireproof storage box/safe. Consider the pluses and minuses of locking the storage box/safe. A thief can carry off a box/safe if he or she thinks it has valuables in it. If you have a box that is unlocked, the thief will be able to see that it has relatively less valuable papers. Also, you won't have to worry about your personal representative being locked out after your passing. Of course the thief may vandalize your papers or carry everything away anyway. Also, consider using a bank's safety deposit box. Putting your Trustee's or Personal Representative's name on your safety deposit box makes it immediately accessible by that person but also makes it more convenient to access after your pass away or become incapacitated. In all cases, make sure your personal representative and agents know where you keep your papers. If you revoke a document make sure you retrieve and destroy all copies of it. Also, if you ever make changes, retrieve the old copies and dispose of them and issue the revised copies. I recommend not using your attorney at law to store your original legal documents or copies of those documents. These are your documents and you should control them.
May I revoke or cancel my legal documents?
Yes, you may do such a thing, just as you may change them from time to time as necessary or desired. Make sure you retrieve all copies and destroy them. To revoke an original document there are many ways under the law but I recommend doing it in writing by crossing out the entire page with a big X in ink and at the bottom writing in your hand REVOKED and then date and sign it next to it. Do this on every page of the document. Then inform your personal representative and agent/attorney in fact of your actions and get any copies from them and destroy them. If you keep the document that has been revoked in writing upon it then that would help resolve any confusion about whether or not it has been lost, just in case a copy of the revoked document appears.
Who is responsible for making sure my legal documents are kept up to date with the tax laws, other laws, treasury regulations, and changes in my factual circumstances?
You are responsible unless your attorney specifically agrees to assume that responsibility. This attorney typically does not agree to do so due to the difficulties in tracking everyone's documents and factual circumstances. If this attorney wished to assume such a duty, it would have to be in a written agreement and would involve a significant yearly fee. The following are some, but not all, of the circumstances under which you should contact me or the attorney at law of your choice: change of residence, changes to beneficiaries, change of financial circumstances (e.g. you receive a significant inheritance, have an asset like a fine art work that is appreciating rapidly, win a lottery, or lose a great deal of money), have additional children, your children now have grandchildren, a potential beneficiary is having money, creditor, or marriage problems, your personal representative or agent is unable or unwilling to act (Florida limits who can serve as a personal representative, e.g. to Floridians and certain relatives), your Will does not have a self-proving affidavit, or your Will's witnesses are otherwise potentially unavailable to help prove the Will.
I am worried that a stay in the nursing home will eat up my assets so I will leave little or nothing to my heirs, what should I do?
This is a highly complex question that involves an area of the law in which I have chosen not to practice. It is called Elder Law, Medicaid planning or nursing home planning. Without delaying consulting with an attorney, I recommend that before you go to see a lawyer you first get quotes from three non-associated insurance agents for the cost of nursing home or long term care insurance (LTC). The bottom line is that you have to decide what your priorities and realities are and then make sure you communicate them to your Elder law attorney and your attorney preparing your wills, trusts, etc.
Let each attorney know what planning you have done. If preserving assets against Medicaid expense is your priority, then see the Medicaid attorney promptly and then see the Will and Trust attorney as soon as possible thereafter if still needed. Let each know what your priorities are. If you have a loved one who has special needs then I can assist you with a special needs trust which can provide some income to that person to supplement and not supplant SSI or Medicaid and allow the balance of assets to go to the beneficiaries of your choice after the special needs beneficiary passes away. Planning ahead is the best approach. See the discussion below regarding reacting to a situation where a SSI or Medicaid recipient has received assets or income that may interfere with their receipt of benefits. Of course, you may wish to have your assets pay for a person's care even if it does end up voiding or supplanting government benefits in full or in part. If so, explicitly plan for it or people may misinterpret your intentions.
If I do not sign the documents you have drafted, do I still have to pay you for drafting them?
Yes, you must pay for the consultation and for drafting of the documents.
Do I have to pay for a notary too?
This attorney is a Notary Public of the State of Florida. There is no extra charge for incidental notary services.
Do I, the client, have to provide the witnesses since you are traveling to my house?
Yes, unless special arrangements are made in advance, you will have to provide two mentally competent, unrelated (to you), and unmentioned (in your documents) adults to serve as witnesses. Neighbors work great, especially if you tell them you'll return the favor when needed.
What do my witnesses have to bring to closing?
Themselves and a proper photographic identification such as a Florida Drivers License, passport, or military I.D. The signer and the witnesses are all required to stay until everyone signs all documents. Ask them to plan to be with us for about an hour.
What do I have to bring to closing?
Yourself and a proper form of photographic identification as described above.
Should I expect to complete my Will, DPOA, Living Will, and the other papers and then forget about them?
No, people, their circumstances, and tax laws change significantly from time to time, and when such occurs, you should review and hire an attorney to review your legal planning for disability and death in order to prevent unintended consequences.
Is it possible to provide for the continuation of SSI or other government benefits while still giving a special needs heir his or her fair share of the estate?
Not really, I can draft a special needs trust provision for a special needs beneficiary in a document executed prior to your death or incapacity, which will supplement and not supplant SSI payments even if that means the trustee decides to give nothing to the beneficiary due to strict government regulations. Then any remaining principal may be distributed to the surviving beneficiaries upon the death of the special needs beneficiary. If a special needs person directly receives property there is a trust that can mitigate the effect on government benefits, referred to as a Pooled Trust in which a Pooled Trust Company acts as trustee and manages your special needs beneficiary's funds as a sub-account of a larger pooled investment trust, however, upon termination and payment of liens, the pooled trust balance is retained by the Pooled Trust administrators to aid other special need individuals (not your beneficiaries). There is another trust referred to as a Qualified Income Trust (QIT), also known as a Miller Trust, that can be used to prevent disqualification from medicaid by temporarily sheltering excess income. However, at the end of life of the beneficiary, the QIT trust assets are used to repay the Medicaid expenses that have accumulated. Miller Trusts are available to those people earning too much monthly income to qualify for Medicaid in the nursing home context but not having enough income to pay for the nursing home outright on their own. It serves to "fill the gap" and gets people the nursing home care they need. There are also other so-called special needs trusts that temporarily shelter assets to avoid disqualification from Medicaid long term care (ICP) benefits. This attorney prefers to help people plan in advance rather than reacting to a situation after the fact. I would refer you to a specialized Medicaid planning attorney if you seek to consult with me about an after-the-fact, direct inheritance by a special needs beneficiary. I do not draft pooled trust or Miller trust documents.
BE ADVISED THAT THIS FAQ PAGE INFORMATION IS SUBJECT TO BECOMING OUTDATED DUE TO CHANGES IN THE STATE AND FEDERAL LAWS, REGULATIONS, AND COURT AND ADMINISTRATIVE AGENCY DECISIONS. PLEASE TAKE SPECIAL NOTE OF THE REVISION DATE ON THE BOTTOM OF THE HOME PAGE. PLEASE CONSULT WITH A LICENSED ATTORNEY IN MAKING YOU ESTATE PLANNING DECISIONS AND DRAFTING YOUR ESTATE PLANNING DOCUMENTS.