A will is a legally enforceable declaration of how a person wishes his or her property to be distributed after death.

Legal requirements exist in Florida in order for a will to be legally recognized:

• The person making the will, called the testator, must be at least 18 years old.
• 26 states allow handwritten wills, but Florida is not one of them. A will must be typewritten.
• Two witnesses must observe the will being signed by the testator, then sign the will themselves.
• The will must state at least one beneficiary to receive the property named in the will.

• Other requirements, the absence of any requirement could be grounds for the will to be declared invalid by a judge. However, heirs will often contest wills that are correctly written and legally valid.

• Testate or Intestate: If a decedent has a valid will (referred to as dying “testate”), the will controls over the default provisions of Florida law. If the decedent did not have a valid will (referred to as dying “intestate”), or if the will fails in some respect, then Florida law dictates who inherits and who has preference to serve as personal representative.

• Minor children: A Will is the only way to appoint a guardian for your child in the event of your death. A will is also used to nominate guardians for your minor children.

A power of attorney (POA) is a legal document that gives a person, called an “agent,” the authority to act on behalf of another individual, called the “principal.” In my opinion, the POA is the one of the most important documents in your estate plan.

The agent is granted control of your assets on your behalf if you’re unable to control them yourself. Florida Power of Attorney rules changed in 2011 legislation. If you had a POA created before this time, it’s still valid, but you may want to consult with an attorney to make any changes to your POA.

The financial power of attorney requirements in Florida are very specific.  They can be found in the Florida Power of Attorney Act, which begins with Section 709.2101 of the Florida Statutes.

A power of attorney may give others the right to do almost any legal act that the maker of the power of attorney could do.

• Access a bank account
• Sell a car home or other property
• Sign a contract
• Make health care decisions
• Handle financial transactions
• Sign legal documents
• Create trusts and
• Make gifts

Living wills, health care directives and other advance directives are written, legal instructions regarding your preferences for medical care if you are unable to make decisions for yourself. Advance directives guide choices for doctors and caregivers if you’re terminally ill, seriously injured, in a coma, in the late stages of dementia or near the end of life.

Advance directives aren’t just for older adults. Unexpected end-of-life situations can happen at any age, so it’s important for all adults to prepare these documents.

By planning ahead, you can get the medical care you want, avoid unnecessary suffering and relieve caregivers of decision-making burdens during moments of crisis or grief. You also help reduce confusion or disagreement about the choices you would want people to make on your behalf.

A Revocable Living Trust or Inter-Vivos Trust can be a powerful tool for succession planning and avoiding probate. It is a popular estate planning tool in Florida. McWhorter Law can help you determine if a Living Trust is advantageous for your circumstances.

A Will or a Living Trust: Like your Last Will and Testament, a Living Trust is also a written declaration of who you would like to receive your property at your passing. However, unlike a Will, a Living Trust is a private document which allows you to pass property without the delays, cost, and publicity of going through the probate courts. A Trust can also accomplish a lot more such as protecting your family’s privacy; providing for your children, grandchildren, and pets; helping to plan for your incapacity; and protecting your property from lawsuits.

More Control Over Distributions to Beneficiaries: A Living Trust gives you greater ability to control when beneficiaries receive their inheritance, and how they use it. For example, if you have an adult child who is not responsible with money, the provisions of your Trust could specifically give him only certain amounts at specific ages, and/or for specific purposes.

Pet Trust: We love our pets. Two thirds of Americans live with an animal, and according to a Harris poll, 90 percent of pet owners think of their dogs and cats as members of the family. For a long time, Florida law did not provide pet owners with an estate planning tool to provide for their pets after the owner’s death. In 2002, Florida’s statutes were changed to allow for making a Pet Trust.  Florida Statute 736.0408 allows pet owners to establish a trust for their pets.

Probate is a court-supervised process for identifying and gathering the assets of a deceased person (decedent), paying the decedent’s debts, and distributing the decedent’s assets to his or her beneficiaries. In general, the decedent’s assets pay the probate proceeding’s cost, the decedent’s funeral expenses, then the decedent’s outstanding debts. The remainder of the assets are distributed to the decedent’s beneficiaries.  You can find the Florida Probate Code in Chapters 731 through 735 of the Florida Statutes. You can find the rules governing Florida probate proceedings in the Florida Probate Rules, Part I and Part II (Rules 5.010-5.530).

Whether the decedent had a will or not, probate is still necessary if the decedent dies with “probate assets.” The state’s probate law will control property distribution to the deceased person’s next of kin.   next of kin.

To probate a will, the property is distributed according to the will. It is     important to understand that a will does not avoid probate.