Probate is a process that takes place under Florida law to change title to property from one person to another after the person whose name is on the property has passed. If the deceased person had not already directed where the property should go through a beneficiary designation, joint title with right of survivorship with another person, or trust document, then the title to the property has to be changed at their death in order to be titled in another person’s name.

Depending on the value of the property subject to the probate process, the process can be as simple as filing a letter with the Probate Clerk’s office for transfer of the property or as extensive as the filing of probate documents by an attorney to begin the probate process with the court. The size of the estate determines what documents need to be filed and how long the process will ultimately take. In addition to the payment of court costs, attorney’s fee and expenses, this process can take a few months or several years to complete.

To avoid the probate process altogether, property must not be titled in the name of only one person, or must be disposed of prior to a person’s death. However, in order to make sure that the consequences in attempting to avoid probate are not more costly than the probate process, legal advice in the estate planning process is required.

The selection of a personal representative for your estate is a very important choice and should be made with a great deal of care and consideration. This person must be over 18 years of age and a resident of the state of Florida (unless they are a blood relative or related to a blood relative by marriage). The person must be mentally and physically able to correspond with an attorney and beneficiaries and be able to assemble and account for all the estate assets and liabilities. Additionally, the person may not have any felony convictions.

Typically, if you are married, your spouse would be named as your personal representative if they meet the above qualifications. However, if a spouse, or other family member is not able to serve, you may select a Florida resident or financial institution to serve in that capacity. Ideally, this person would have some knowledge of your personal and financial affairs and would have an existing relationship (personal or professional) with the beneficiaries of your estate.

Blended families must have special considerations to how the respective spouse’s estate plans are made. Both spouses should discuss if the assets in the estate are to be considered part of their joint estate, or if there is some property that is to be kept separate and given to their children at their death. Additionally, there are special considerations on how the assets that are created during the marriage are to be devised to each spouse’s individual children. The best plan is to discuss these issues completely and with full disclosure of all assets and liabilities, before entering into an estate plan. However, if an agreement cannot be reached, each spouse will have to seek independent advice from an attorney, as this type of disagreement may pose a conflict of interest with one attorney attempting to establish a joint estate plan.

Much like the selection of a personal representative for your estate, the selection of a trustee for your trust is a crucial one. The Trustee ultimately should be someone your have complete trust and confidence in to make sure that the assets in the trust are managed and disbursed as you have directed in the trust document. However, depending on the goals of the trust, a known individual may be better suited to ensuring that your stated goals in the trust document are met, given a personal relationship with you and your beneficiaries. In the end, the most important step you can take toward selecting a trustee is to determine what assets that person will be called upon to manage and what goals you have for the assets involved.

It is always prudent, though not required, to either select a successor trustee or to provide the current trustee the power to appoint a successor. Trusts tend to be administered over the course of several years, which means that the trustee you name more likely than not, will not be the final trustee.

Depending on the age and circumstances of the child, there are a variety of tools available for insuring that your legacy is there for your child’s use. The most common tool employed is that of a trust, however, there are many variations of trust agreements. Therefore it is very important to take into consideration not only what assets are available in your estate as a whole, but also what needs your child may have that must be addressed, who will be there in your absence to address them, and how long you intend the legacy to last.

A living will is a specific type of “Advance Directive.” It is typically a witnessed written document that specifically directs a person’s physician on what type of life prolonging procedures to initiate under certain circumstances that are defined by Florida law. These life prolonging procedures are any type of medical procedure or treatment (including provision of artificial food and water) that restores or sustains life function. It does not include medical procedures or medications that are for comfort measures only.

The purpose of the living will is to direct what, if any, life prolonging treatment, is to be initiated by a person’s physician when one of three conditions exist: an end stage condition, a persistent vegetative state, or a terminal condition – all of which are defined by Florida law. This document does not address the person’s directions for medical treatment for any other conditions that may exist while the person is incapable of expressing their wishes for treatment. To appropriately manage those circumstances, it is recommended that a person have one or more of the following: a Medical Power of Attorney, a Health Care Surrogate Designation, a Do Not Resuscitate Order, or an Anatomical Gift Designation.

The determination of when either an end stage condition, a persistent vegetative state, or a terminal condition exists rests with the person’s treating physician and one other consulting physician. However, it is the person’s responsibility to make sure they have given their treating physician a copy of this Living Will in advance.

Ideally, this issue is addressed when you provide your doctor with a copy of your Living Will. At that time, if your physician has any reservations about continuing to provide your medical care, you will be made aware of the issue. If this conversation hasn’t occurred before you have been diagnosed with an end stage condition, a persistent vegetative state, or a terminal condition, a conversation must take place between either your named Health Care Surrogate, if you have one, or your most immediate next of kin and your attending or treating physician. Because Florida law creates a rebuttable presumption of your wishes in these limited circumstances, you or your designee can proceed to either finding another physician to take over your care who will follow your directions, or in the most extreme case, a petition can be filed in court to determine if your Living Will is valid and order that it be followed.

Florida law provides individuals with the opportunity to express their wishes regarding the type of care they wish to receive, under what circumstances, and who they would like to make those decisions on their behalf. These are typically written and witnessed documents and are called “Advance Directives” generally. The instructions for healthcare can be contained in documents called a “Living Will”, “Medical Power of Attorney”, “Health Care Surrogate Designation”, “Do Not Resuscitate Order”, “Anatomical Gift”, “HIPAA Designation” or a “Designation of Preneed Guardian”.

The selection of a Health Care Surrogate is one of the most important choices you will make for your long term comfort and care. This individual must be over 18 years of age and must know specifically what your wishes are with regard to all aspects of your health care. Depending on the level of power you give that person, your health care surrogate will have the power to provide consent or refusal for any type of treatment, can apply for benefits on your behalf to defray the costs of healthcare, will have access to all of your medical records to make those decisions and can consent to making an anatomical gift.

The purpose of asset protection is to insure that your future life care needs are met by maximizing any and all benefits that may be available to meet those needs, while preserving your assets as a legacy for your beneficiaries. As with any planning process, the earlier your start and the more knowledgeable you are about your assets and long terms goals, it will be more likely for you to achieve those goals. There are a myriad of legal tools and financial products designed for this purpose. But this planning process works best when you involve a team of professionals who are knowledgeable about the tools and products that will help you achieve your goals and will commit to a relationship of working with you to create a plan that best fits your unique set of circumstances.