Wills, Trusts, and Estates
It is never too early to begin the estate planning process. The most common reasons given for estate planning include management and protection of assets during a lifetime, and distribution of estate assets after death.
An unplanned estate rarely conforms to the wishes of an individual and, as a result, can have undesirable consequences. Every estate is unique; therefore, to effectively meet your planning needs, a carefully crafted estate plan should always be favored over a one-size-fits-all approach.
Creating a will ensures that your estate will be distributed in accordance with your wishes. To be admissible to probate, a will must meet the formal execution requirements set forth under Florida Statues. Improper execution may result in the will's invalidation.
Under Florida law, the descent of intestate property is distributed by per stirpes, whether to descendants or to collateral heirs. Fla. Stat. § 732.104. A per stirpes scheme divides and distributes shares of the estate at the first generational level, even if there are no living takers at that level.
A trust is a fiduciary relationship where one or more trustees manage, protect, and invest assets for the benefit of one or more named beneficiaries.
Methods of Creating a Valid Trust
A trust may be created by:
- Transfer of property to another person as trustee during the settlor’s lifetime or by will or other disposition taking effect on the settlor’s death.
- Declaration by the owner of property that the owner holds identifiable property as trustee; or
- Exercise of a power of appointment in favor of a trustee. Fla. Stat. § 736.0401.
Requirements to Create a Valid Trust
- To create a trust, the settlor must have the requisite legal capacity. The capacity required to create, amend, revoke, or add property to a revocable trust, or to direct the actions of the trustee of a revocable trust, is the same as that required to make a will. Fla. Stat. § 736.0601. In the case of an irrevocable inter vivos trust, the requisite capacity is the same as that required to make a gift. If created by a resident of Florida, the trust must be signed with the formalities for execution of a will in Florida in order for its "testamentary aspects" to be valid. Fla. Stat. § 736.0403.
- The settlor indicates an intent to create a trust.
- The trust must have a definite beneficiary, or be a: (1) charitable trust, (2) trust for the care of an animal, Fla. Stat. § 736.0408, or (3) 21-year trust for a non-charitable purpose. Fla. Stat. § 736.0409.
- The trustee has duties to perform.
- The same person is not the sole trustee and sole beneficiary.
- The trust purposes must be lawful, not contrary to public policy, and possible to achieve.
- The trust is not procured by fraud, duress, mistake, or undue influence.
POWER OF ATTORNEY
Except as otherwise provided under the Florida Power of Attorney Act, a power of attorney is durable if it contains the words: “This durable power of attorney is not terminated by subsequent incapacity of the principal except as provided in chapter 709, Florida Statutes,” or similar words that show the principal’s intent that the authority conferred is exercisable notwithstanding the principal’s subsequent incapacity.
- The agent must be a natural person who is 18 years of age or older or a financial institution that has trust powers, has a place of business in this state, and is authorized to conduct trust business in this state.
- Signed by the principal and by two subscribing witnesses and be acknowledged by the principal before a notary public or as otherwise provided in Fla. Stat. § 695.03.
- Power of attorney executed before October 1, 2011, is valid if its execution complies with the law of this state at the time of execution. Fla. Stat. § 709.2402.
- If the principal is physically unable to sign the power of attorney, the notary public before whom the principal’s oath or acknowledgment is made may sign the principal’s name on the power of attorney pursuant to Fla. Stat. § 117.05(14).
Non-Florida Powers of Attorney
A power of attorney executed in another state which does not comply with Florida's execution requirements are valid in Florida only if the execution complied with the law of the state of execution.
Third parties may request, and rely upon without further investigation, an opinion of counsel as to the validity of the due execution of the power of attorney signed outside of Florida. An opinion of counsel requested must be provided at the principal’s expense.
A third party may request an opinion of counsel that the power of attorney was properly executed under the laws of another state. The failure to provide the opinion is sufficient grounds for the third party to refuse to accept the power of attorney. Fla. Stat. § 709.2106.
The principal must revoke the power of attorney in writing either by express revocation in a new power of attorney or some other writing signed by the principal. The execution of a subsequent power of attorney is insufficient to revoke prior powers. Fla. Stat. § 709.2110.
Powers of attorney terminate when:
- The principal dies;
- The principal becomes incapacitated, if the power of attorney is not durable;
- The principal is adjudicated totally or partially incapacitated by a court, unless the court determines that certain authority granted by the power of attorney is to be exercisable by the agent;
- The principal revokes the power of attorney;
- The power of attorney provides that it terminates;
- The purpose of the power of attorney is accomplished;
- The agent’s authority terminates and the power of attorney does not provide for another agent to act under the power of attorney. Fla. Stat. § 709.2109.
Request a Consultation
To schedule a consultation to discuss your estate planning matter, please call or email the office. Once you schedule your consultation, you will be provided with a list of documents to submit prior to the consultation.