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Estate Planning

What is a Personal Representative?

By Elder Law, Estate Planning, Probate

In Florida, a personal representative is appointed to administer a person’s estate after their death.  Many other states call this agent an “executor.”  The personal representative is responsible for gathering the decedent’s assets, publishing a Notice to Creditors, searching for creditors, paying the appropriate taxes associated with the estate, and distributing the assets of the estate to beneficiaries.  A personal representative needs an attorney to help them through the probate process as many legal issues associated with estate administration commonly arise.  It is actually required by the Florida Probate Rules that the PR have legal representation during the probate proceeding except in very limited circumstances.

If you have been named personal representative for an estate and are looking for legal assistance, contact one of our attorneys who are experienced in handling probate proceedings and ancillary probate at (941) 906-1231.

December 25, 2015
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What is a Durable Power of Attorney?

By Elder Law, Estate Planning

A Durable Power of Attorney, unlike a limited power of attorney or non-durable power of attorney, may remain in effect after incapacitation.  This can be an important document to have in place if you wish for your designated power of attorney to continue handling your financial or legal matters even if you are ever deemed incapacitated later in life.  The powers granted to your durable power of attorney can be laid out by you and can be limited or more general.

In Florida, a Durable Power of Attorney can be a way to avoid guardianship during incapacitation.  If proper estate planning and health care documents are put into place before incapacitation, courts may not need to appoint a guardian because the person you choose as your power of attorney (aka your attorney-in-fact) can act on your behalf in financial and sometimes medical matters.  This is an example of what Florida law considers a possible “lesser restrictive alternative” to guardianship.

If you are looking to set up or review your estate planning documents, contact one of our experienced attorneys at (941) 906-1231.

December 22, 2015
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Clauses to Include in a Will or Living Trust

By Asset Protection Planning, Elder Law, Estate Planning, Probate

While everyone needs individualized legal advice on what language their estate planning documents should contain, the following are some of the most common and important clauses which should be discussed with the lawyer preparing your will or living trust.

  • Revocation: Previously written wills or trusts should be revoked to avoid the court intervening later to decide which parts of certain documents should be followed.
  • Disaster Clause: This clause helps plan what will happen to your assets if both you and your spouse or main beneficiary die at the same time.
  • Appointment of personal representative: While doing estate planning you will need to name someone as your Personal Representative who will be in charge of distributing the assets in your estate.
  • Guardianship of children: If you have minor children, it is very important that you name someone as their guardian in the event that you or you and your spouse die.
  • Spendthrift Provision: This clause prevents the beneficiary of your assets from transferring their rights to those assets. A spendthrift provision is often used to protect assets from creditors.
  • Total failure: Total failure would occur if all heirs of your estate died before inheriting your assets. This is an extremely rare situation but, without a total failure clause, your estate would go to the government in this circumstance.  A total failure clause allows you to instead designate an organization of your choice for the estate to be given to.

If you have questions about what should be in your estate planning documents to ensure all of your wishes are met and your assets are distributed exactly as you desire, contact our office at (941) 906-1231 to speak with an experienced estate planning attorney.

December 11, 2015
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How can a trustee be removed?

By Asset Protection Planning, Elder Law, Estate Planning

In Florida, trusts can contain provisions which describe situations in which a trustee should be removed and procedures for doing so.  An example of a procedure that could be laid out to remove a trustee would be conducting a majority vote among beneficiaries.  The courts may also choose to remove a trustee if the trustee has 1) committed a serious breach of trust, 2) co-trustees are uncooperative to an extent that interferes with the trust’s administration, or 3) all beneficiaries ask for the trustee’s removal.

If you have questions related to establishing a trust to ensure the trustee you designate can be removed in certain situations or believe a trustee should be removed in a certain case, contact Bach & Jacobs, P.A. at (941) 906-1231.  We represent trustees and trust beneficiaries and can advise your regarding your rights and options.

December 8, 2015
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Are Holographic Wills Valid in Florida?

By Elder Law, Estate Planning, Probate

Holographic wills, or wills which are handwritten and signed by the Testator without any witnesses, are considered invalid by the state of Florida.  Florida law states that at least two witnesses must be present during the signing of a will by the Testator.

Another unconventional type of will is a nuncupative will under which the Testator orally records their estate planning wishes.  Like holographic wills, nuncupative wills are not valid in Florida.

To consult with an estate planning attorney about how you can create an estate plan which will ensure your assets are distributed as you wish or to have your out-of-state will reviewed for compliance with the Florida Probate Code, contact the law office of Bach & Jacobs, P.A. at (941) 906-1231.

December 1, 2015
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What powers will my Power of Attorney have?

By Asset Protection Planning, Elder Law, Estate Planning

The powers granted to your power of attorney depend on the type of power of attorney that you set up during estate planning.  Some different powers of attorney include:

  • A limited power of attorney who can only perform certain actions which you specify such as selling your house.
  • A general power of attorney who can perform many actions which you outline such as making medical or business decisions.
  • A durable power of attorney who, unlike the two types of power of attorney described above, remains effective after incapacitation.

Designating a power of attorney, and especially a durable power of attorney, is an essential part of proper estate planning.  If you would like to learn more about how you can designate a power of attorney, what type you should choose, and who you should appoint, please contact us at (941) 906-1231.

November 27, 2015
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Ensuring your Stepchildren’s Rights to an Inheritance

By Asset Protection Planning, Elder Law, Estate Planning, Probate

            In the state of Florida, stepchildren do not have automatic legal rights to inherit assets from their stepparent.  If you would like your stepchildren to inherit part of your estate, you need to specify that in your estate planning documents such as your will and trust.  Wills must contain specific language identifying stepchildren and including them as beneficiaries.  Generic references to “my children” would not automatically include stepchildren.  Another way to ensure your stepchildren receive part of your estate is to formally adopt them so they would be afforded full legal rights equivalent to those of biological children.  Adopting your stepchildren could help avoid inheritance issues if you do not leave estate planning documents such as a will or trust describing how you want your assets to be dispersed among your blended family.

To set up estate planning documents, contact the office of Bach & Jacobs, P.A. at (941) 906-1231.

November 24, 2015
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Should I amend or restate my current trust?

By Asset Protection Planning, Estate Planning

Typically, to ensure that your trust is reflective of the most up to date legislation and that your desires will be honored, it is often recommended that a trust be restated if you are seeking significant modifications.  However, a simple “amendment” rather than full “restatement” may be more appropriate if you are returning to the same attorney for revisions who originally drafted it, the original trust is less than a few years old, and the changes you wish to make are minimal.

To have a Board Certified attorney review your current trust or find out what estate planning practices would best meet your individual needs, call our office today at (941) 906-1231.  Bach& Jacobs, P.A. represents clients throughout Florida, especially in Sarasota County and Manatee County.

November 20, 2015
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Difference between a Health Care Power of Attorney (HCPOA) and an Emergency Contact

By Elder Law, Estate Planning

When a hospital or health care provider asks a patient who their emergency contact is, many patients incorrectly assume that their emergency contact is able to make medical decisions for them.  This is not the case as an emergency contact has no authority to make decisions on your behalf, even if you are unable to make the decisions yourself.  In order to designate a person who can make health care decisions for you a “health care surrogate” must be designated by the patient.  This person has the authority to make medical decisions on the patient’s behalf regardless of whether the surrogate is present at the hospital in the event of an emergency.

It is important to understand the distinction between a health care surrogate and an emergency contact so that in the event of an emergency or situation involving medical decisions you can be sure to notify doctors of both your emergency contact and surrogate.  A Health Care surrogate should be designated if you want a trusted individual to be able to make medical decisions on your behalf, including in the event of an emergency which leaves you unable to make these decisions yourself.  To set up a designation of health care surrogate, contact our office today at (941) 906-1231 to set up an appointment to speak with an experienced estate planning attorney.

November 6, 2015
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Clauses to Include in a Will or Living Trust

By Asset Protection Planning, Elder Law, Estate Planning

While everyone needs individualized legal advice on what language their estate planning documents should contain, the following are some of the most common and important clauses which should be discussed with the lawyer preparing your will or living trust.

  • Revocation: Previously written wills or trusts should be revoked to avoid the court intervening later to decide which parts of certain documents should be followed.
  • Disaster Clause: This clause helps plan what will happen to your assets if both you and your spouse or main beneficiary die at the same time.
  • Appointment of personal representative: While doing estate planning you will need to name someone as your Personal Representative who will be in charge of distributing the assets in your estate.
  • Guardianship of children: If you have minor children, it is very important that you name someone as their guardian in the event that you or you and your spouse die.
  • Spendthrift Provision: This clause prevents the beneficiary of your assets from transferring their rights to those assets. A spendthrift provision is often used to protect assets from creditors.
  • Total failure: Total failure would occur if all heirs of your estate died before inheriting your assets. This is an extremely rare situation but, without a total failure clause, your estate would go to the government in this circumstance.  A total failure clause allows you to instead designate an organization of your choice for the estate to be given to.

If you have questions about what should be in your estate planning documents to ensure all of your wishes are met and your assets are distributed exactly as you desire, contact our office at (941) 906-1231 to speak with an experienced estate planning attorney.

October 30, 2015
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