What is an Estate Plan?
Updated: Jul 4
An estate plan can be as simple or complicated as you'd like. Essentially, a proper estate plan is a guide for your loved ones to follow once you pass away or if you become incapacitated. It directs how you want your "stuff" to be distributed.
Upon your death, your property generally passes to others in one of three ways: (1) by contract (e.g., life insurance); (2) by operation of law (e.g., joint ownership in property with right of survivorship; or (3) by probate. A proper estate plan can include strategies to avoid probate, a way to help your loved ones avoid the time and expense of settling your estate when you pass away and leave assets titled only in your name.
Most estate plans include at least the following documents:
Last Will and Testament. In this document you define who you want to receive real and personal tangible property when you pass away. Again, your "stuff." You also designate a personal representative who is responsible for distributing property, opening probate (if necessary), and settling your affairs.
Durable Power of Attorney. In this document you give limited or substantial power to another person (called an "Agent") who "stands in your shoes" and acts on your behalf. You may stipulate that your Agent can handle personal, financial, or health related decisions. Florida law prohibits POAs from being "springing." This mean the document is effective the moment is it signed and cannot be made effective upon some future event occurring. Therefore, your Agent should be someone you trust. A POA being made "Durable" simply means that your Agent's powers continue even if you become incapacitated at some point in the future.
Health Care Surrogate. In this document you identify whom you want to make your medical decisions, if you are unable to make them yourself. You may also designate that your agent can have access to your medical information.
Living Will. In this document you address your wishes regarding end-of-life care. You declare how and if life-prolonging procedures should be implemented in one of three end-of-life conditions: (1) end-stage; (2) terminal; or (3) persistent vegetative state. You usually indicate whether you wish to pass away naturally, fight for life using life support, or take other extraordinary measures when it is the only option to sustain life.
Trust. A Trust is a great way to avoid probate and allows a trustee to manage your property for beneficiaries based on wishes of the settlor (you). Florida recognizes several types of trusts and they may be made revocable or irrevocable.
Pre-need Guardian. This useful document can be used for adults or minor children. In this document you select a person to serve as your guardian, before the need for a guardian exists, should you become incapacitated at some future date. Parents may also designate a guardian for their minor children, if the parent(s) pass away before the children turn 18.
Enhanced Life Estate (aka "Lady Bird") Deed. In Florida, a "Lady Bird" deed is a special kind of real property deed. The property owner transfer their property to some future interest holder, but retains use and control over a property during their life. Ownership of the property does not pass until the owner dies. This type of deed is said to be "enhanced" because it has distinct features different from a traditional Life Estate, granting the life estate holder more rights and privileges. This type of deed also helps to avoid probate upon the death of the owner.
Each of the documents listed above are legal documents, with varying consequences and execution requirements. As such, you should always retain the services of a licensed attorney when developing an estate plan.