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Florida Probate and Estate Planning FAQ

Here are some frequently asked questions and answers regarding Florida probate and estate planning by St. Petersburg wills, trusts, and probate attorney Jim Martin. This is provided for general information and not specific legal advice.

What Is a Will?

A will, also known as a last will and testament, is a writing that specifies who is to receive the assets of a deceased person. We call the person making the will the testator while living and the decedent after death.

What Are the Requirements For Signing a Will in Florida?

A Florida resident must sign the will at the end of the document in the presence of at least two witnesses who are both present at the same time and place as the person making the will and who also sign the will as witnesses. Of all the legal documents prepared by lawyers, wills still require the most formality in signing. The will of a Florida decedent that was not signed in accordance with the requirements of Florida law is void.

Is an Electronic Will Valid in Florida?

A special procedure applies to electronic wills in Florida to make them valid, but electronic wills are not yet practical in Florida due to the strict signing requirements and difficulty in locating a proper custodian.

Does a Florida Will Require a Notary?

A Florida will does not require a notary to be valid, but wills are usually signed in Florida in the presence of a notary public, in addition to the two witnesses, to make the will self-proving at the time of death. Self-proving wills can be admitted to probate after the death of the testator without having the witnesses come to the courthouse to provide proof of the will.

Where Should I Keep My Will After It Is Signed?

The person signing the will should keep the original will in a safe place because the original of the will must be presented to the probate court after the testator’s death. A copy of the will may not be admitted to probate (except in unusual circumstances). Florida has no provision for pre-filing wills with the clerk of the probate court prior to death so the testator should keep the will in a safe deposit box at a bank or another safe place.

What Is a Personal Representative?

The personal representative is the person, bank or trust company appointed by the probate court to administer the affairs of a Florida decedent’s estate. The antiquated terms administrator and executor are no longer used in Florida.

Who Appoints the Personal Representative in Florida Probate?

The probate court appoints the personal representative whether the decedent died with a will or without one. Lawyers often refer to this person as the PR. The testator’s will should name a Florida bank or trust company having trust powers or a trusted Florida resident as personal representative and trustee, and it should list several alternates to serve in case any of those named predeceases the testator.

May a Nonresident Serve as Personal Representative of a Florida Probate Estate?

The will may name a nonresident as a personal representative only if he or she is the testator’s parent or lineal ascendant, child or lineal descendant, spouse, brother, sister, uncle, aunt, nephew, or niece, or the spouse, lineal ascendant or lineal descendant of any of the foregoing. While this list seems long, there are many relatives who cannot serve as personal representatives in Florida unless they are Florida residents. This restriction does not apply to trusts.

What Is a Trustee?

The trustee is the person, bank or trust company named to administer a trust. The trustee holds legal title to trust assets on behalf of the trust beneficiaries. The trustee does not have the benefit of the trust assets, unless the trustee is also a beneficiary.

What Is a Testamentary Trust?

Not all wills have trusts, but when a trust is created by a will the trust is called a testamentary trust.

Does a Testamentary Trust Avoid Probate?

No, a testamentary trust does not avoid probate in Florida.

What Is Probate?

Probate is generally required in Florida when a Florida resident dies owning any asset anywhere and when a nonresident dies owning any real property in Florida. The probate proceeding is the law’s way of assembling the decedent’s assets, paying the decedent’s claims and taxes, and passing assets to the decedent’s beneficiaries.

Is Probate Private or Public in Florida?

Probate in Florida is a court proceeding so most of the documents filed in the case are open to public viewing. However, the inventory of assets owned by the decedent at the date of death and the accounting of financial transactions during the probate case are sealed from public view.

What Is a Testate Estate?

If a Florida resident dies with a will, he or she has died testate. The will names the personal representative and beneficiaries of the estate. Making a will is the means by which an individual determines the beneficiaries who will inherit his or her property at death and the personal representative who will be responsible for collecting the assets, paying claims, taxes and expenses, and distributing the remaining assets.

Is Probate Required In Florida When There Is a Will?

Yes. To be effective, a will must be filed with the clerk of the Florida probate court after the individual dies, a petition for administration must be filed, and an order admitting the will to probate must be entered by the court. Thus, the estates of persons who die with wills must be probated just the same as the estates of persons who die without wills. The only difference is that those with a will have the ability to name the beneficiaries who will receive their estates at their death and to name who they prefer to be the personal representatives. Because probate is a court proceeding, it is best to have a lawyer file the probate proceeding.

What Is an Intestate Estate?

If a Florida resident dies without a will, then he or she has died intestate. Because there is no will, the the Florida Probate Code specifies who will receive the decedent’s probate estate assets, and who will have priority in appointment as PR, instead of the decedent’s will specifying this.

How Is a Florida Intestate Probate Estate Started?

A Florida intestate estate commences with the heirs or creditors asking for appointment of a personal representative by filing a petition for administration with the probate court. Because probate is a court proceeding, it is best to have a lawyer file the intestate probate proceeding.

Who Serves as Personal Representative Of a Florida Probate Estate If There Is No Will?

Florida law provides that the surviving spouse is entitled to preference in being appointed the personal representative of an intestate estate. If there is no spouse, then a majority of the heirs may select the person entitled to preference. In any case, the probate court makes the final decision.

Who Inherits When There Is No Will In a Florida Probate?

Florida intestacy law ays that the following persons are entitled to receive the residuary of the probate assets of a Florida resident who dies without a will: (a) if the decedent leaves a surviving spouse but no descendant (child, grandchild, etc.), then the surviving spouse is entitled to receive all of the residue; (b) if the decedent leaves at least one descendant but no surviving spouse, then the descendants are entitled to receive all of the residue; (c) if the decedent leaves a surviving spouse and one or more descendants, all of whom are descendants of both spouses, and if the surviving spouse has no other descendant, then the surviving spouse is entitled to receive all of the residue; (d) if the decedent leaves a surviving spouse and one or more descendants, one or more of whom are not descendants of both spouses, then the spouse is entitled to one-half of the residue and the descendants are entitled to the other half.

What Is a Living Trust?

A living trust, also known as a revocable trust or an inter vivos trust, is a form of ownership in which assets originally owned by the grantor of the trust are legally re-titled into the name of a trustee who manages the assets for the benefit of the trust’s beneficiaries.

Does a Living Trust Avoid Probate in Florida?

Yes, a living trust is the most effective means of avoiding probate and guardianship in Florida with respect to the trust’s assets. It is safer than using joint ownership to avoid probate because the trustee named by the grantor does not personally own the assets of the trust. A living trust avoids probate in Florida as to the assets conveyed to the trust because upon the grantor’s death the assets of the trust are owned by the trustee in trust and not by the grantor.

Can the Grantor Serve as Trustee of a Living Trust In Florida?

Yes. Frequently, the living trust names the grantor as the initial trustee and initial beneficiary. This means that the grantor both manages the trust assets as trustee for life and is entitled to the benefit of the assets as beneficiary for life. However, instead of naming the grantor as the initial trustee, a grantor may name a bank with trust powers, a trust company or a trusted individual as the initial trustee.

Who Is Entitled To a Living Trust When the Grantor Dies?

A living trust in Florida should name the beneficiaries entitled to receive the assets when the grantor dies. This part of the trust is similar to a will’s dispositive provisions (the paragraphs of a will that say who gets what). The trust also names who will be the successor trustee after the initial trustee resigns, dies or becomes incapacitated.

How Is a Living Trust Created in Florida?

A living trust is created by signing a written trust agreement. The trust agreement should be prepared by a lawyer and signed by the person creating the trust (called the settlor or grantor). It must be signed with the same formality as a will, so it is usually signed when the will is signed by the testator and witnesses.

Do All of the Grantor’s Assets Avoid Probate With a Living Trust?

The trust assets avoid probate but the assets of the grantor that have not been transferred to the trust and that remain titled in the grantor’s name at death are subject to probate after the grantor’s death the same as they would be without a trust. So it is important for the grantor to fund the trust before death.

How Is a Living Trust Funded?

After a living trust is created, the assets that the grantor wants the trust to have must be transferred to the trustee in trust. The grantor’s lawyer can prepare the transfer documents for the grantor to sign to accomplish this.

Should a Grantor Transfer All Assets To a Living Trust?

No. Special attention needs to be given to assets such as homestead, life insurance, annuities, IRAs, retirement accounts, motor vehicles, planes, boats, and other assets that avoid probate on their own through valid death beneficiary designations or that may be exempt from claims of creditors or that may have adverse tax consequences if placed in trust. Therefore, legal and tax advice is necessary when funding a trust.

Can Creditors Reach Living Trust Assets After the Grantor Dies?

In most cases, yes. After the grantor dies the trustee named in the trust must file a notice of the existence of the trust with the probate court. Creditors have two years after the decedent’s death to file claims, but this can be reduced to three months by filing a probate proceeding and publishing and serving notice to creditors. For that reason, it is advisable to open a probate proceeding for the purpose of administering the claims process upon the grantor’s death, even when there is a living trust.

What Are Joint Tenancies?

Joint tenancies are any form of ownership involving more than one owner, such as joint tenancy with full rights of survivorship, tenancy in common, and tenants by the entirety. Joint tenancies may be held in many types of assets in Florida, including real estate, bank accounts, stocks, etc. Some forms of joint tenancy avoid probate and some do not.

Do Assets Held as Joint Tenants With Full Rights of Survivorship Avoid Probate in Florida?

Assets subject to Florida law that are held jointly with full rights of survivorship generally pass automatically by operation of law to the surviving joint owners and do not require probate if there is at least one surviving joint owner. Real estate, bank accounts, stocks, and mutual funds are frequently held as joint tenants with full rights of survivorship.

Do Assets Held as Tenants In Common Avoid Probate In Florida?

Joint assets held as tenants in common do not avoid probate under Florida law when one of the joint owners dies. Assets subject to Florida law that are held jointly but not with full rights of survivorship and not as tenants by the entirety may be considered held as tenants in common.

Do Assets Held as Tenants By the Entirety Avoid Probate In Florida?

Yes, assets held by a husband and wife as tenants by the entirety pass automatically by operation of law to the surviving spouse and do not require probate on the first death in Florida. In addition to probate avoidance, separate creditors of just one spouse cannot reach tenancy by the entirety assets in Florida. This form of ownership is sometimes called tenancy by the entireties.

What Are Disadvantages To Joint Ownership?

One disadvantage of jointly-held property is that probate is not avoided when the last joint owner dies. Probate will usually be required upon the death of the last surviving joint owner. Another disadvantage of joint ownership of property in Florida is that it constitutes true ownership. This might mean that a joint owner could withdraw, sell, borrow against, or convey his or her interest in the joint asset without approval of the other joint owners. It also might mean that creditors of one joint owner could reach that joint owner’s interest in the property (except for tenancies by the entirety).

What Are Disadvantages To Adding a Child’s Name To a Bank Account In Florida?

Adding a child’s name as a joint owner of a bank account could constitute a gift to the child possibly triggering the federal gift tax laws. In addition, the child’s creditors could reach the the child’s interest in the asset. Also, the child’s spouse could claim an interest if the child divorces. Therefore, it is generally not advisable to add a child’s name as joint owner of a bank account in Florida.

What Are Disadvantages To Adding a Child’s Name To a Home In Florida?

Adding a child’s name as a joint owner of a home in Florida could adversely impact the homestead status of the home for tax and other purposes. It could also constitute a gift to the child possibly triggering the federal gift tax laws. And it could also be problematic because the child’s creditors could reach the child’s interest in the home. Similarly, the child’s spouse could claim an interest in the home jointly held with a child if the child divorces. Therefore, it is generally not advisable to add a child’s name as joint owner of a home in Florida.

Does Joint Ownership Avoid a Guardianship In Florida?

Joint ownership does not avoid a guardianship in Florida. For example, if a married couple owns a home and one of them becomes incapacitated, necessitating the sale of the home to pay medical bills, a guardianship might be required because one spouse alone cannot sign a deed conveying the home. A durable power of attorney might be used to convey the home, but not everyone has one.

Do Life Insurance Proceeds Avoid Probate in Florida?

Life insurance proceeds payable by valid death beneficiary designation to someone who survives the decedent and who is other than the insured’s estate are not probate assets so they avoid probate in Florida. Life insurance payable to the insured’s estate are probate assets and do not avoid probate.

Do Retirement Account Proceeds Avoid Probate In Florida?

Yes, if there is a beneficiary other than the estate. The owner of an individual retirement arrangement (IRA), 401(k), pension, profit sharing, and other retirement accounts may designate the beneficiary entitled to receive the account at his or her death by signing a written beneficiary designation that is filed with the account institution in accordance with its contracts. The proceeds of the retirement account would then be paid directly to the beneficiary without going through probate in Florida. It is important to keep copies of these written beneficiary designations, as well as proof that the institutions received them and have them on file. If the owner dies and the institution claims it does not have a beneficiary designation, then the account could be a probate asset.

Do Assets That Avoid Probate Also Avoid Taxes?

No. Just because an asset avoids probate in Florida does not mean that it will avoid taxes. There are many possible taxes arising from someone’s death. Federal income and estate taxes can be substantial, and avoiding probate does not avoid those taxes.

When Is No Probate Required in Florida?

There is no law that says every Florida resident who dies must have a probate proceeding. If the resident owned no asset in his or her name alone and had no creditors, then there might be no need for a probate proceeding. However, the Florida Probate Code provides a limitations period of two years after death for the decedent’s creditors to file claims. The two-year period can be shortened to three months after publishing notice to creditors. However, notice to creditors can only be published by the personal representative of a formal administration or the beneficiaries or petitioners of a summary administration. Therefore, it might be in the best interest of certain persons to open a probate administration of a Florida resident even if there are no assets in the deceased resident’s name. For example, if a Florida resident creates a revocable living trust and funds it with all his or her assets so that, at death, the resident owned no assets in his or her separate name, and all assets are titled in the trust name, then a probate proceeding is not technically required. But the trustee is generally required to file a notice of trust with the probate court so that creditors are informed of the existence of the trust. Creditors have two years after death to file their claims. If the trustee distributes the trust before the two-year period expires, it would have no assets with which to pay claims of creditors and might be liable to pay them. In such a case, a probate proceeding would be used to publish and serve notice to creditors so that the two-year claims period was reduced to three months and the remaining trust could be distributed sooner without risk to the trustee.

What Is Formal Probate In Florida?

The regular probate procedure for Florida residents who have died is formal probate administration. This is a proceeding in the Circuit Court by which the court admits a will to probate, appoints a personal representative, receives the inventory of assets, receives proof of service and publication of notices to creditors and beneficiaries, receives claims, receives accountings of the personal representative, receives proof of payment of claims of creditors, receives proof of distribution of the remaining estate to beneficiaries, receives confirmation that taxes have been paid and tax returns filed, resolves will contests and disputes, determines homestead, determine elective share, determines exempt property, and, finally, after all that, discharges the personal representative.

How Long Does Probate Take In Florida?

Probate proceedings for most estates in Florida must generally be completed within one year and are often completed within six months, as long as everything goes smoothly. Here’s why: Three basic things take place during probate: 1) If the decedent was organized, then locating assets is very quick and simple and can take just a few days to a few weeks. If the decedent had a lot of assets, then this can take longer. If probate takes longer than six months, it’s usually because of the extent or complexity of assets. 2) Before paying creditors, they have to be found. This is done by publishing a notice to creditors in the legal newspaper and giving them three months to file a claim. In addition, a copy of the notice to creditors is sent to every reasonably ascertainable person who might be a creditor. At the end of the three-month creditor claims period, the creditors are known and paid, if all goes smoothly. If this takes longer than three months, then it’s usually due to a disputed claim or a problem with taxes. 3) Finally, after the three-month creditor claims period expires and the creditors are paid, the remaining estate can be distributed to beneficiaries. If it takes longer, then it is usually because there is a will contest or other complexity.

What Is Summary Administration in Florida Probate?

If a Florida resident dies owning less than $75,000 in assets, then it might be possible to have a shortened form of probate proceeding called summary administration. In a summary administration, the probate court can admit a will to probate, but instead of appointing a personal representative the court order can list the assets owned by the decedent and declare them to be owned by the beneficiaries. Because no personal representative is appointed, there is no ongoing probate proceeding, no inventory or accountings to file, and no discharge order to be entered. However, a notice to creditors should still be published and served on all reasonably ascertainable creditors in order to limit their time to file a claim. If this is not done, then creditors might have up to two years after death to file a claim. The beneficiary of a Florida resident whose estate can be the subject of a summary administration should engage a Florida probate lawyer to represent the beneficiary and prepare the legal documents for the summary administration.

Are There Rules For Opening a Safe Deposit Box in Florida When Someone Dies?

Yes. When someone dies with a safe deposit box in a Florida bank, there are many rules to follow. The probate lawyer in Florida is often called on to assist gaining access to open the safe deposit box when someone dies. If the deceased person is the only renter or lessee of the box, then it might take a court order to open the box. Even if another person is named in the box lease, Florida laws and rules require that certain additional persons be present for the box opening, and an inventory of the box contents must be filed with the court within 10 days. Why all the complexity? To safeguard the rights of the deceased person’s creditors and heirs. Just because someone is named on a bank safety deposit box lease as a signer does not mean that person owns what’s in the box. Sure, it’s evidence of ownership, but just because your father put your name on the box lease does not mean he gave you everything in the box. He might have put your name on the box lease as a convenience in case of his death.

Who Owns the Contents of a Safe Deposit Box When Someone Dies in Florida?

If the box was leased only to the deceased person, then the decedent’s estate likely owns the contents of the safe deposit box. The estate’s court-appointed personal representative will be able to open the box (in the presence of certain persons) and remove the contents, file an inventory with the court, and deal with the contents as assets of the estate. Creditors of the estate are entitled to be paid before beneficiaries, so if there are assets of value in the box and not enough cash elsewhere to pay all creditors in full, then the creditors of the estate would be entitled to be paid from the contents of the box before beneficiaries. Beneficiaries of the estate would be entitled to the rest of the contents of the box, subject to the personal representative using the box contents to pay fees and expenses of estate administration, which actually have priority over all others, including creditors.

What Is Elective Share in Florida?

Florida law provides that the surviving spouse is entitled to take an elective share in an amount equal to 30% of the elective estate. The determination of what is meant by “elective estate” is a complicated legal question best left to an attorney.

What Must Be Probated in Florida?

Any asset titled in the decedent’s name at death must pass through probate in Florida, but there are exceptions. For example, life insurance is paid directly to the beneficiary named in insurance policy and does not pass through probate. But if no surviving beneficiary is named in the life insurance policy, then the life insurance policy proceeds are payable to the estate and the proceeds pass through probate. Similarly, an IRA or retirement plan that names a beneficiary passes directly to the beneficiary and not through probate, but if no surviving beneficiary is named, then it passes through probate. Homestead is another asset that passes outside probate in Florida. Homestead is generally the home that the decedent owned and lived in when residing in Florida. It has its own particular requirements and is quite complicated, but the important thing to remember is that it passes outside probate.

When Is Probate Required Even If There Are No Assets Owned At Death?

There are two situations where probate is opened even when the Florida resident owned no assets at death: wrongful death and living trust. If a Florida resident dies as a result of someone else’s negligent or intentional act, there might be a cause of action for wrongful death against the one at fault. In that case, a wrongful death lawsuit is filed by the personal representative of the probate estate. A probate proceeding must be opened in order to file the lawsuit even if the decedent owned no assets. Also, if a Florida resident dies owning no assets in his or her name but created a revocable trust during his or her life (living trust), then a probate proceeding is still recommended in order to clear claims of creditors in the shorter 3-month creditor claims period for probate estates instead of waiting the longer 2-year limitations period before distributing trust assets.

How Does Homestead Pass Upon Death?

Florida law provides that the decedent’s homestead cannot be passed by will to anyone if the decedent is survived by a spouse or minor child, except that it can be passed to the spouse if there is no minor child. If the decedent leaves no will and is survived by a spouse and lineal descendants, the spouse receives a life estate and the lineal descendants receive the remainder. However, the surviving spouse may elect to take a one-half interest in the homestead instead of a life estate.

What Is a Pretermitted Spouse or Child?

If a Florida resident marries after making a will and the will does not provide for the spouse, the spouse is generally entitled to a share of the estate as a pretermitted spouse. This share is equal in value to the share the spouse would have received if the resident had died without a will. Similarly, if a child is born to or adopted by a Florida resident after making a will and the will does not provide for the child, the child may be entitled to a share of the estate as a pretermitted child. This share is equal in value to the share that the child would have received if the resident had died without a will. Thus, it is important to make a new will after getting married and after the birth of a child.

What Is Exempt Property of a Decedent?

Exempt property in a Florida probate estate is exempt from the claims of most creditors and consists of (a) household furniture, furnishings and appliances in his or her usual place of abode up to a net value of $20,000, (b) two motor vehicles held in the decedent’s name and regularly used by the decedent or his or her immediate family as their personal vehicles, and (c) certain other property. Unless the decedent’s will leaves the exempt property to others, the surviving spouse is entitled to the exempt property, but if there is no surviving spouse, then the decedent’s children are entitled to it.

What Is a Guardianship?

Guardianship is to the living what probate is to the deceased — a court proceeding to oversee the rights and property of an individual who is unable to manage on his or her own. The court may appoint a guardian for a minor (someone under the age of 18 years). The minor’s parents are natural guardians, but are often appointed guardians of minors by the court in cases when the powers of natural guardians are not sufficient, such as in filing and settling auto accident cases. The court will also appoint a guardian for a person who has been found to be incapacitated. Florida no longer uses the term incompetent to describe those who are unable, through mental or physical disability, to care for themselves or their property. Guardians must file annual accountings with the court, and the court must audit the accountings. These requirements are intended to protect the ward (minor or incapacitated person), but the expense and public nature of a guardianship can be counter-productive to the ward. For this reason, guardianship avoidance through the use of more effective estate planning techniques, such as living trusts, have become popular.

What Is a Declaration of Preneed Guardian in Florida?

Florida law allows an individual to sign a declaration naming the persons, banks or trust companies the individual would prefer to act as guardian of the person and property in case the individual is found by the court to be incapacitated. Such a declaration of preneed guardian must be signed and filed with the clerk of court before becoming incapacitated. The law also allows a parent to name a guardian for his or her minor children by filing a declaration of preneed guardian for minor.

What Is a Durable Power of Attorney in Florida?

One person (the principal) may give another person (the agent or attorney in fact) the power to sign documents, write checks, convey real estate, and do other acts for him or her by signing a written power of attorney. However, all powers of attorney cease when the principal dies, so a power of attorney will not avoid probate. Most powers of attorney also cease to be effective when the principal becomes incapacitated. However, a durable power of attorney remains effective when the principal is incapacitated, so the agent can continue to sign documents, write checks and do other acts for the principal to the extent allowed in the durable power of attorney. Thus, a durable power of attorney might avoid the need for a guardianship.

Is a General Power of Attorney Allowed in Florida?

No. Florida law no longer allows a general power of attorney. Powers of attorney must specify in detail the powers that are granted.

Is a Springing Power of Attorney Allowed in Florida?

No. Florida no longer allows a springing power of attorney. The power of attorney becomes effective when signed and cannot require that it become effective only upon incapacity.

What Is a Health Care Surrogate or Proxy in Florida?

Florida allows an individual to name a health care surrogate to make health care decisions for the individual in case the individual is unable to make or communicate a choice regarding a particular health care decision. The law also allows a health care proxy to do this if no health care surrogate is named. The law also allows a parent to name a health care surrogate for his or her minor children.

What Is a Living Will in Florida?

A living will of a Florida resident states whether or not his or her life should be artificially prolonged if he or she is incapacitated and has a terminal condition or end-stage condition or is in a persistent vegetative state and his or her physicians determine there is no reasonable medical probability of recovery. Many individuals state that they would not want life sustained in this situation so they sign a living will. Sometimes a living will is confused with a living trust. They are quite different legal documents. A living trust has to do with assets, but a living will has to do with health care.

How Should Motor Vehicles Be Titled in Florida?

Every owner of a Florida motor vehicle is legally responsible for the negligent acts of the driver. This is called the dangerous instrumentality doctrine. Therefore, in order to reduce the risk of liability for accidents arising out of motor vehicles, they should be titled only in the name of the principal driver. A husband should own his car, and a wife should own hers. Their cars should not be jointly owned. Children should own the cars they drive if they are over the age of eighteen (18) years.

What Is a Personal Liability Umbrella Insurance Policy?

Most auto and homeowner insurance policies limit their coverage to less than a million dollars, but claims exceeding that amount are not unusual today. Liability claims resulting in judgment or settlement in excess of the policy limits must be paid by the insured. A personal liability umbrella insurance policy can be obtained from an insurance agent to raise the liability coverage to a higher limit. In addition, the agent can include uninsured/underinsured motorist coverage as part of the umbrella policy to increase the insured’s own protection from uninsured and underinsured drivers.

How Should Life Insurance Be Owned in Florida?

The person whose life is insured should be the owner of the life insurance policy, and the policy should name a beneficiary other than the estate of the insured. In Florida, the cash value of life insurance owned by the insured is exempt from the claims of the insured’s creditors. At the insured’s death, the life insurance proceeds cannot be reached by the insured’s creditors if the insured named a death beneficiary other than the insured’s estate and that beneficiary survives the insured. Cash value of life insurance on the insured person that is owned by the insured’s spouse or anyone other than the insured is not exempt from claims of that owner’s creditors and, therefore, can be reached by creditors of the spouse or other owner of the life insurance. The proceeds of life insurance that are paid to an individual’s estate may be reached by the creditors of the individual.

How Much Title Insurance Should I Have on My Florida Real Estate?

Title insurance should be maintained equal to the fair market value of the real estate. Some people remember to increase homeowner’s insurance coverage when they receive their annual premium statements, but title insurance premiums are paid only when the policy is issued at the time of purchasing the real estate. Title insurance can be obtained and increased by a licensed title insurance agent in Florida.

What Is Disinheritance?

Florida law does not require an individual to leave any property to anyone other than the surviving spouse. Thus, an individual can cause children and other relatives not to inherit anything (disinherit) by making a will that omits them. But, there are a few exceptions to this.

What Is a Bank Account Held “In Trust For”?

Bank accounts that are set up “in trust for” named beneficiaries to whom the balance in the account shall be paid at death are called Totten trusts and do not require probate. A Totten trust account owner is allowed to make withdrawals from the account during his or her lifetime, which makes this trust different from other types of trusts. One disadvantage of a Totten trust is that if the beneficiary dies before the account owner dies, then probate will be required. Another disadvantage is that a Totten trust may avoid probate, but it will not avoid a guardianship and it is not a substitute for a power of attorney. The beneficiary cannot have any access to the account while the account owner is alive, even if the account owner is incapacitated and needs the beneficiary’s assistance in withdrawing funds to pay medical bills. A guardianship or power of attorney would be required in that case.

Why does it say “attorney” in power of attorney?

The word “attorney” in the power of attorney form refers to the person you name to act for you. We call that person an attorney in fact or an agent. It can name a licensed lawyer (an attorney at law), but it doesn’t have to.

Can a Florida power of attorney be used after death?

Most powers of attorney end when the person making it (the principal) dies. So, the agent generally cannot use the power of attorney after the principal’s death. (See F.S. 709.2109)

How broad can the powers be in a Florida power of attorney?

Some states allow a power of attorney to be very broad and call it a “general” power. Florida no longer allows a Florida resident to create a general power of attorney. The form used for Florida residents must grant specific powers only. Therefore, there are many kinds and sizes of forms we use here. “General provisions in a power of attorney which do not identify the specific authority granted, such as provisions purporting to give the agent authority to do all acts that the principal can do, are not express grants of specific authority and do not grant any authority to the agent.” F.S. 709.2201(1)

Can a Florida power of attorney be used after mental incapacity?

A Florida power of attorney usually ends if the principal becomes mentally incapacitated. But, Florida allows a “durable” power of attorney to remain active if that happens. The power of attorney documents needs to have special wording to make it durable: “This durable power of attorney is not terminated by subsequent incapacity of the principal except as provided in chapter 709, Florida Statutes” F.S. 709.2104

When does a Florida power of attorney start?

Most powers of attorney become effective when signed and can be used immediately. Some states allow a “springing” power of attorney that comes into existence only if the principal becomes incapacitated, but Florida does not allow this. (See F.S. 709.2108).

What is the legal basis for a power of attorney?

Powers of attorney are based on the concept of “agency” under English common law, which was adopted in Florida as of July 4, 1776, so it’s a very old concept. And, Florida has laws governing powers of attorney. (See F.S. 709.2301)

Are courts involved with powers of attorney?

Like all common law states, it is up to the Florida courts to interpret laws and statutes that govern powers of attorney. So, lawyers look at prior court cases, in addition to statutes, to determine whether a power of attorney is valid or not. (See F.S. 709.2116 and F.S. 44.407)

Can a power of attorney avoid the need for probate in Florida?

No. Powers of attorney generally end at death of the principal. (see F.S. 709.2109)

Can a power of attorney avoid the need for a Florida guardianship?

Possibly, yes, if the power of attorney uses the wording required for a “durable” power of attorney (see F.S. 709.2104 and F.S. 744.3203 and F.S. 744.462) and if a health care advance directive is also signed (see F.S. 765 and F.S. 744).

Must a power of attorney be in writing and signed by the principal and two witnesses and a notary?

Yes, unless the principal making it is a corporation, LLC, or other type of entity or if the power of attorney is a government form or certain other types of powers. (see F.S. 709.2103 and 709.2105)

Who can be the agent of a Florida power of attorney?

The agent must be at least 18 years old, if an individual (not an entity). If not an individual, the agent must be a Florida financial institution with trust powers. (see F.S. 709.2105)

Must the agent sign a Florida power of attorney?

No, there is generally no requirement that the agent sign the Florida power of attorney.

What are the duties of the agent under a Florida power of attorney?

The agent is a fiduciary and, generally, must act only within the scope of authority granted in the power of attorney, may not act contrary to the principal’s reasonable expectations actually known by the agent, must act in good faith, may not act in a manner that is contrary to the principal’s best interest, must attempt to preserve the principal’s estate plan, must act loyally for the sole benefit of the principal, must  act so as not to create a conflict of interest that impairs the agent’s ability to act impartially in the principal’s best interest, must act with the care, competence, and diligence ordinarily exercised by agents in similar circumstances, and must cooperate with a person who has authority to make health care decisions for the principal in order to carry out the principal’s reasonable expectations to the extent actually known by the agent and, otherwise, act in the principal’s best interest. The agent has other duties, as well. (see F.S. 709.2114 and F.S. 825.103)

Must the agent under a power of attorney keep records?

Yes, the agent must keep a record of all receipts, disbursements, and transactions made on behalf of the principal and must keep an accurate inventory each time the agent accesses the principal’s safe-deposit box (if the agent is granted that power). (see F.S. 709.2114)

May a Florida power of attorney include health care advance directive powers such as naming a health care surrogate?

Yes, but it might be better to sign separate documents for health care matters. Typically, the separate document forms are a) a living will, b) a designation of health care surrogate, and c) a durable power of attorney for health care. (see F.S. 765)

May the Florida power of attorney designate the agent to serve as guardian in case a court determines that the principal is incapacitated?

It is better to sign a separate document form called a declaration of preneed guardian. (see F.S. 744.3045)

Contact

If you have the need for a St Petersburg Pinellas County Florida probate and estate planning attorney, you may use the contact form below or call Jim Martin directly at 727-821-0904 or email him at jim@jamesmartinpa.com for a free initial consultation.

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