A Living Will declaration is a letter of instructions to your Doctor or other Health Care Providers describing what your wishes are for your health care treatment. If you are not presently able to talk, or otherwise communicate with the doctor, the Living Will operates as your written instructions.

A Living Will Declaration, however, has been commonly thought to only be a direction not to connect you to life support systems, or if you are already connected to such a system, then to remove the life support system. In Florida, a Living Will can give these instructions (even to the extent of discontinuing food and water) if you are permanently unconscious or suffering from a terminal condition and death is otherwise imminent. A Living Will may also direct just the opposite - i.e. keep yourself connected to the equipment at all costs, or may direct anything in between.

The importance of this document is to make sure that your family and doctors know what your wishes are, instead of having to guess at your intentions.  It is best to have all of your wishes in writing in a Living Will declaration.

As you know, a power of attorney is a document that allows someone else to act on your behalf. There are basically two types of a Power of Attorney: Financial Powers of Attorney, and Health Care Powers of Attorney. The Financial Power of Attorney allows someone (called your "Attorney-in-fact") to make financial decisions on your behalf and place them into effect. The Health Care Power of Attorney allows your attorney-in-fact to make health care decisions on your behalf, if you can not do so yourself. In many instances having the proper power of attorney may be more important than having a Last Will and Testament.

Durable Powers of Attorney are particularly advisable for older people. For example, an individual can be in the best of health today, have a stroke in the middle of the night while sleeping, and be mentally incompetent in the morning.

In most instances, a "nondurable" power of attorney becomes useless when a person becomes mentally incompetent. You could say it becomes legally void. On the other hand, a Durable Power of Attorney is worth its weight in gold, because it transcends mental incompetency. A "durable" power of attorney allows the person you designate to act on your behalf, even if you become incompetent. Obviously, it should be given only to someone you ABSOLUTELY TRUST. This is very important because the person that holds your power of attorney effectively stands in your shoes and can do the same things that you could do.

With a durable power of attorney document in place, you can frequently avoid the expense and trauma of an estate guardianship proceeding.  In some States, transfer agents are required by law to accept a properly executed durable power of attorney. Durable powers of attorney can get stale, especially as the transfer agents change their requirements from time to time. As a result, durable powers of attorney generally must be updated on a regular basis; usually every 5 to 7 years.

In very simplistic terms, the "Living Trust" is a contract that governs the use, management and ultimate distribution of either just a single asset, a few different assets, or all of your assets. This is much different from the separate joint and survivorship or payable on death contracts which govern stocks, bonds, mutual funds, bank or brokerage accounts.

For the small estates where estate taxes are not a concern, (now under $5,000,000.00), one can use a Living Trust to transfer assets on death. This kind of trust not only will allow assets within the trust to avoid probate, but it can be used to prevent children from receiving large sums of money at an early age (i.e. age 18), protect the inheritance of spendthrift children, or preserve the inheritance of children of a first marriage in the event of a second marriage by the surviving spouse. Additionally, this kind of trust can provide a degree of professional money management, if a corporate is utilized, enable assets to be transferred quickly, provide a measure of confidentiality as to the kinds and values of assets, and/or ensure funds being available for an aged parent or an incompetent relative.

When using a trust to avoid the probate administration process or meet your other estate planning goals, your assets must be placed in the trust during your lifetime, or at least designate the trust as the beneficiary. Assets which can be placed in a trust include savings and checking accounts, CD's, stocks, bonds and mutual funds. Even the title to your home can be placed in such a trust. Life insurance, pensions and annuities could have the trust named as beneficiary.

The Living Trust must be created and in effect during your lifetime. It is also sometimes called an "inter vivos trust," a "grantor trust," or a "revocable trust."

Assets can pass to your beneficiaries either through the Probate process, or by "contract." Non-probate Property are assets that pass to your children or other beneficiaries by contract. That is, during your lifetime, you have entered into a contract with your bank, brokerage firm, or insurance company to deliver specific assets to a designated beneficiary, automatically upon your death. Oftentimes we do this without thinking about it.

Assets such as savings accounts, checking accounts, brokerage accounts, mutual funds, or individual stocks or bonds can be titled in a joint and survivorship format. On the death of one of the parties, the assets pass to the survivor without going through probate. Alternatively, these same assets can remain in the name of a single owner, but have a "payable on death" or "transfer on death" designation, which names a beneficiary. On death of one of the owners, the assets pass to the designated beneficiary without going through probate.

The title to real estate can also be placed in a survivorship format or be held in such a way that the real estate passes to a named beneficiary automatically upon death. Just because the deed has two or more names listed on it does not mean that it is a survivorship deed. There is a common misconception that, by the mere fact that the names of a husband and wife name appear on the deed as owners, the title automatically passes to the survivor on the other's death.

Although the above methods are an easy and inexpensive way to avoid probate, they must be utilized in light of one's overall estate plan. In addition, keep in mind some of the potential problems - i.e. loss of control or access by the joint owner's creditor's - associated with having your assets owned in this fashion.

The base of any plan has to be a Last Will and Testament. Even if a husband and wife have their assets in joint and survivorship form, provisions should be established to direct the distribution of assets after the death of the surviving spouse. And of course, there may be some items that won't be transferred to heirs any other way. A Will can also go a long way to reduce hassles by specifically designating recipients of SPECIAL property, such as collections or heirlooms.

A prime reason for having a Will is to state your choice of a guardian for your minor children. In order to ensure that your children are raised in the type of home and religious environment that you would raise them in if you were alive.  It is important that your choice of a guardian is known. A Will is the most appropriate place for you to make your choice of guardian known to the Probate Court.

Your will should also designate your choice of an executor. You can then have some confidence that your estate will be handled properly and effectively, and by a person whom you trust.

Finally, your Will should contain adequate powers to assist your executor in administering the estate. If your executor is competent and trustworthy, then broad powers can be given which may reduce the time and costs of administration, and the amount of effort otherwise required by the fiduciary to administer the estate. You may even ask the Probate Court to waive the executor's bond. If your executor is trustworthy, but not business-wise, then fewer powers may be more appropriate which would require that the executor obtain instructions or permission from the court before selling or disposing of any assets.

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Florida Estate Planning

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Estate Administration

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