– Estate Planning Law –
The Eric Boles Law Firm in Tampa, Florida understands that estate planning issues are highly personal and will work closely with you to reach your goals
Estate planning covers the transfer of your property at death as well as a variety of other personal matters and may or may not involve tax planning. It is a process involving counsel for the disposal of your estate who is familiar with your goals and concerns, your assets and how they are owned, and your family structure. Estate planning provides you the opportunity to make your wishes known, determine who will carry out your wishes both during your lifetime and after your death. An estate planning attorney can assist you to maintain independence and control over personal, health care and financial decisions.
Estate planning eliminates uncertainties over the administration of a probate and aims to protect your estate from creditors, maximize the value of your estate by reducing taxes and other expenses. What is the most important to you is to make sure that your affairs are handled fairly even if you are later unable to make those decisions yourself.
The Eric Boles Law Firm in Tampa, Florida understands that estate planning issues are highly personal. Our estate planning lawyer will work closely with you to help you understand the various considerations and how to make effective decisions to reach your goals. Estate Planning, when done correctly, should above all else provide you with the peace of mind that comes from knowing you have done everything possible to protect yourself and your family.
There are several tools to make sure that your estate planning goals are met. One of the most common estate planning tools in Florida that you need is a will. Your last will and testament (or just will) is a legal declaration by you, the testator that names one or more persons (executors) to manage your estate and provides for the distribution of their property at death. In addition, your will can appoint your preferred guardian to take over your affairs if you become incapacitated.
You have the right to dispose of property as you choose, subject to Florida forced heirship laws (preventing you from disinheriting a spouse and, in some cases, children). A will does not override a beneficiary designation under a life insurance policy, retirement plan, or a joint form of ownership. If you are the surviving parent you may also designate a guardian for your minor child or children and thereby minimize court involvement in the care of your child. You may choose to provide for persons whom the state’s intestacy laws would not otherwise benefit, such as stepchildren, godchildren, friends or charities. If you die without a will the state of Florida will determine who may serve as executor of your estate and who will get your property.
Wills can be of various degrees of complexity and can be utilized to achieve a wide range of family and tax objectives.
A Living Will (or advance medical directive) is your written expression of directions about the provision, withholding, or withdrawal of life-sustaining treatments, including artificially provided food and water, when you are terminally ill or injured and incapable of expressing your directions. Many of the provisions of such a document have profound religious and philosophical implications and you have to be certain that it is consistent with your beliefs and wishes. If you do not have a living will, decisions regarding your health care are left to family members, and often they cannot agree or are in conflict about your wishes. You can also draft a medical power of attorney, which would grant your lawyer or another designee the power to make medical decisions on your behalf and handle your affairs.
The Durable Power of Attorney
For most people, the durable power of attorney is the most important estate planning instrument available — even more useful than a will. A power of attorney allows a person you appoint — your “attorney-in-fact” or “agent” — to act in place of you – the “principal” — for financial purposes when and if you ever become incapacitated.
The durable power of attorney is a legal arrangement which gives authority to a named individual for decisions related to artificial life support. It allows the named person to decide whether or not the patient should remain connected to a respirator (often indicated in a living will, which must be honored). Durable power of attorney is granted in Florida if it is executed by a competent adult and signed in presence of 2 adult witnesses.
In that case, the person you choose will be able to step in and take care of your financial affairs. Without a durable power of attorney, no one can represent you unless a court appoints a conservator or guardian. That court process takes time, costs money, and the judge may not choose the person you would prefer. In addition, under a guardianship or conservatorship, your representative may have to seek court permission to take planning steps that she could implement immediately under a simple durable power of attorney.
A power of attorney may be limited or general. A limited power of attorney may give someone the right to sign a deed to property on a day when you are out of town. Or it may allow someone to sign checks for you. A general power is comprehensive and gives your attorney-in-fact all the powers and rights that you have yourself.
A power of attorney may also be either current or “springing.” Most powers of attorney take effect immediately upon their execution, even if the understanding is that they will not be used until and unless the grantor becomes incapacitated. However, the document can also be written so that it does not become effective until such incapacity occurs. In such cases, it is very important that the standard for determining incapacity and triggering the power of attorney be clearly laid out in the document itself.
However, attorneys report that their clients are experiencing increasing difficulty in getting banks or other financial institutions to recognize the authority of an agent under a durable power of attorney.
A certain amount of caution on the part of financial institutions is understandable: When someone steps forward claiming to represent the account holder, the financial institution wants to verify that the attorney-in-fact indeed has the authority to act for the principal. Still, some institutions go overboard, for example requiring that the attorney-in-fact indemnify them against any loss. Many banks or other financial institutions have their own standard power of attorney forms.
To avoid problems, you may want to execute such forms offered by the institutions with which you have accounts. In addition, many attorneys counsel their clients to create living trusts in part to avoid this sort of problem with powers of attorney.
While you should seriously consider executing a durable power of attorney, if you do not have someone you trust to appoint it may be more appropriate to have the probate court looking over the shoulder of the person who is handling your affairs through a guardianship or conservatorship. In that case, you may execute a limited durable power of attorney simply nominating the person you want to serve as your conservator or guardian. Most states require the court to respect your nomination “except for good cause or disqualification.”
Contact an experienced Florida Wills and Durable Power of Attorney Attorney
The experienced Wills Attorneys at the Eric Boles Law Firm in Tampa, Florida can help you prepare your will so that all of your wishes are upheld, including the appointment of legal guardians for your minor children. In addition to preparing a standard will, our attorneys can help you draft a living will that will guide your family in making health-care decisions if you become incapacitated. Click here to contact the Eric Boles Law Firm for a free consultation with Wills Lawyer or call (813) 933-7700.