ESSENTIAL ESTATE PLANNING DOCUMENTS

♠ Posted by Marc J. Soss in Connecticut Estate Planning,Estate planning attorney,florida estate planning,florida probate attorney,florida probate creditors,health care planning,Power of Attorney

Regardless of your state of residency it is important to have your estate planning documents in order. The following is a list of essential documents and how they will benefit you. Last Will & Testament: a legal document in which you express your wishes as to how your estate (assets, accounts, real estate, etc.) is to be distributed at your death, and nominates the individual(s) or entity to manage the estate until its final distribution. Without this document the state statutes will control who administers your estate and to whom does it pass. ​ Power of Attorney: a written document in which you give another individual (they can reside anywhere) the power to act in your place in managing your assets, pay bills, handle insurance claims, sell real estate, file a tax return, to make gifts, create revocable trusts, invest assets and do anything you can do with your assets personally. You may name one or more agents under a power of attorney, and direct that one may act alone without the other, or that they must act jointly. You can also appoint a successor agent to act in the event the first person(s) you’ve named cannot act. A “durable” power of attorney does not become inoperative upon your incapacity. However, upon your death it is no longer effective. Health Care Surrogate Directive:​ a written instrument in which you appoint someone or multiple individuals you trust to make decisions about your medical treatment in the event you are unable to give instructions at the time the decisions must be made (ex., you are in a coma). Living Will: a document in which you state your wishes regarding medical treatment if you are unable to give instructions at the time the decisions for medical treatment need to be made. The living will can include instructions about the termination of life support and artificial nutrition and hydration (i.e., food & water intravenously). Pre-Need Guardian Declaration: a document that specifically nominates the individual(s) to serve on your behalf if it is necessary to appoint a guardian for you. A Florida Court must consider the individual(s) nominated if he/she is capable of serving. ​Without a power of attorney and health care surrogate in place your family will have to commence guardianship proceedings (petition the court to step in on your behalf) to make these decisions on your behalf. Guardianship proceedings is a very public process and makes the world aware that your family thinks you can’t take care of your own finances or medical decisions.

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THE FLORIDA SLAYER STATUTE DEFEATED BY A CLAIM OF SELF-DEFENSE

♠ Posted by Marc J. Soss in florida probate,florida probate attorney,florida probate creditors,florida probate lawyer,florida slayer statute

Section 732.802 of the Florida Statutes is known as the “Florida Slayer Statute.” Subsection (3) provides “that a named beneficiary of a life insurance policy “who unlawfully and intentionally kills … the person upon whose life the policy is issued is not entitled to any benefit …” Moreover, subsection (5) provides that a final judgment of conviction of murder of any degree is conclusive, but in the absence of such a conviction, “the court may determine by the greater weight of the evidence whether the killing was unlawful and intentional for purposes of this section.” In The Prudential Ins. Co. of Am. v. Harding, 2016 WL 6568085 (M.D. Fla. Nov. 4, 2016), a court found the claim of self-defense to be enough to avoid application of the Florida Slayer Statute in a domestic partners death. A physical altercation in February 2015, resulted in the death of one of the partners (the owner of a life insurance policy with a beneficial value of $466,000). The alleged criminal perpetrator was the sole beneficiary of that life insurance policy. The decedent’s sister argued that the surviving partner was ineligible to collect the life insurance benefits under Florida’s Slayer Statute. However, the State Attorney didn’t pursue charges against the surviving partner as it did not believe there was enough evidence to obtain a conviction. The Circuit Court applied the greater weight of the evidence standard and found that it wasn’t more likely than not that surviving partner acted unlawfully in his actions; and it was just as possible that he acted in self-defense. Accordingly, the court found that Florida’s Slayer Statute didn’t apply and ordered the distribution of the life insurance benefits to the surviving partner.

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WHAT HAPPENS TO YOUR DEBT AT DEATH?

♠ Posted by Marc J. Soss in estate debts,florida creditor protection,florida estate planning,florida probate attorney,florida probate creditors,florida probate lawyer,probate attorney

Everyone reads about the huge transfer of wealth occurring from one generation to the next, however, it is estimated that 73% of decedents have outstanding debt at their death. According to Credit.com, the decedents carried an average total balance of $61,554, including mortgage debt, and $12,875, without. Approximately 68% had credit card balances, 37% was mortgage debt, 25% had auto loans (25%), 12% had personal loans, and 6% had student loans. Fortunately, the “[d]ebt belongs to the deceased person or that person’s estate.” Only if the decedents estate has sufficient assets to cover their debts will their creditors be paid. Family members are not personally responsible for the unpaid debt. It is important to discuss with your probate attorney what assets will be exempt from creditor claims upon a decedent’s death.

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