SUMMARY OF COMMON ESTATE PLANNING DOCUMENTS
Below is a summary of some common estate planning documents you may hear discussed during your consultation. These descriptions are not meant to be comprehensive or a substitute for legal advice, so if you have questions about any of these documents, please consult your attorney. This list also may not reference all documents that you may encounter in your estate planning consultation and the descriptions pertain only to estate planning documents in Florida.
- Last Will and Testament. A Last Will and Testament (often simply called a “will”) is a legal document that directs who will receive certain property after you die. The will can also direct who you would like to be guardian over your minor child, who you would like to be the personal representative (executor) of your estate, as well as describe your burial or funeral wishes. A will is administered through a court process called probate, wherein assets of your estate (typically, assets that you own either in your name alone or without designated beneficiaries) are transferred either to creditors or the beneficiaries named in your will. A will is a public record after you die. The will does not necessarily dispose of all of your property after you die. Assets that are co-owned with a right of survivorship (such as assets co-owned by a married couple) and those with beneficiary designations typically pass outside of the will and probate. Having a will does not avoid probate.
- Revocable Living Trust. A Revocable Living Trust (also known as a living trust or inter-vivos trust) is a legal document created to manage certain assets during your lifetime for your benefit (sometimes avoiding the need for guardianship) and then distribute the remaining assets after your death. A living trust allows you to have more precise control over when and under what conditions your beneficiaries receive certain assets. You can amend or terminate this trust at any time during your lifetime if you are not incapacitated. Your assets, such as bank accounts, real estate, and investments, must be formally transferred to the trust before your death to get the maximum benefit from the trust (also known as “funding” your trust). If your trust is properly funded, your beneficiaries may be able to avoid having to probate your estate (although assets not properly funded into the trust may still be subject to probate). The trust has the added benefit of being private and confidential and is not considered a public record after you die. If you have a revocable living trust, you will almost always have a “pour-over” last will and testament that goes along with it, that names your trust as the beneficiary of your estate.
- Durable Power of Attorney. A Durable Power of Attorney is a legal document that allows the person or people named in the document to make financial decisions and transactions for you, such as conducting banking transactions, selling property, paying your taxes, talking to your insurance and investment companies on your behalf, and more. This document is valid the moment you sign it (even if you become incapacitated) and becomes void either upon your death or when you revoke it.
- Designation of Health Care Surrogate. A Designation of Health Care Surrogate is a legal document that allows the person or people named in the document to make medical decisions for you, such as consenting to surgery or other medical treatment, as well as to receive protected health information on your behalf. Florida law allows the health care surrogate to act immediately and without a formal declaration of incapacity (something physicians are often reluctant to provide); however, if you are not incapacitated, your own decision will supersede those of your health care surrogate. This document, along with the Living Will, is considered an Advance Directive and may also be referred to as a Health Care Power of Attorney.
- Living Will. Not to be confused with a Last Will and Testament, the Living Will is a legal document that indicates what medical care, if any, including life-preserving/saving measures, should be taken if you are ever in a vegetative state, terminal condition, or end-stage condition. This document, along with the Designation of Health Care Surrogate, is considered an Advance Directive.
- HIPAA Release. A HIPAA Release is a legal document that enables you to permit the individuals designated in the document to receive information that would otherwise be considered confidential and protected under the Health Insurance Portability and Accountability Act.
- Declaration Naming Preneed Guardian. The Declaration Naming Preneed Guardian is a legal document that allows you to recommend a person or persons to serve as court-appointed guardian of your person and/or guardian of your property in the event you become mentally or physically disabled and can no longer manage your own affairs. Although your financial and medical powers of attorney are designed to keep you out of guardianship court, there may still be certain circumstances when a guardianship is necessary. If you have minor children, you may also create a Declaration Naming Preneed Guardian for Minor Children, which allows you to recommend a person or persons to serve as court-appointed guardian over your minor children should you die or become incapacitated.
- Enhanced Life Estate (“Lady Bird”) Deed. This special type of deed allows you, as the current owner of your real estate, to use and control the real estate during your lifetime, and then, upon your death, immediately transfers title of the property to the designated beneficiaries (the “remaindermen”) on the deed outside of probate. Homestead status is not affected. If you want to change this deed, you can always create a new deed that either changes the remaindermen or terminates the lady bird deed entirely. This type of deed should typically not be used when real estate is mortgaged, however, or if the remaindermen have IRS tax liens against them.
- Certification of Trust. A Certification of Trust is used in conjunction with a trust certify the existence of a trust and to provide information regarding its essential terms, without providing a full copy of the trust instrument. A Certification of Trust provides information regarding the settlor of the trust, the acting trustee, and the power and authority of the trustee to manage and invest trust property or to act with respect to a specific transaction. A trustee can use a Certification of Trust to certify to third parties that the trustee has authority to administer the trust while keeping the terms of the trust confidential.
- Testamentary Trust. A testamentary trust is simply a trust created in a will that usually comes into being after your death, as opposed to a revocable living trust that is created during your lifetime. Testamentary trusts are often simpler than revocable living trusts, but do not avoid probate. In order for a testamentary trust to be effective, your estate will have to go through probate. Testamentary trusts are commonly used to provide for minor children and are not appropriate in every estate plan.