Short Answer:  While it’s two different documents/roles it can be the same person wearing both hats.

The document for handling financial matters is called a Durable Power of Attorney and the Health Care Surrogate Designation is for healthcare decisions when you are unable but there’s an expectation of survival. 

I usually approach it from the perspective that they are very different roles and often different loved ones might be better suited for one rather than the other.  I tell my client’s that they shouldn’t feel it HAS to be the same person but it absolutely can be. 

Answer:  Naming an out of state –non-blood related– Personal Representative. We see this mistake made in a few Wills every year: the decedent names a non-resident of Florida, such as a close friend, or an out of state attorney as their Personal Representative. These individuals would not qualify to serve under Florida Law. 

The answer is thoroughly outlined in Fla. Stat. §733.304. A nonresident who is not domiciled in the state of Florida cannot qualify as Personal Representative unless:

1. A legally adopted child or adoptive parent of the decedent;
2. Related by lineal consanguinity to the decedent [a/k/a blood relative];
3. A spouse, or a brother, sister, uncle, aunt, nephew, or niece of the decedent, or someone related by lineal consanguinity to any such person; or
4. The spouse of a person who otherwise qualified under this section.

This mistake is a good example of why reviewing your Estate Planning documents every few years with the help of your Attorney is crucial to avoid mistakes. If you are unsure about the named Personal Representative in your Estate Plan or do not have an Estate Plan at all, make an appointment with an Estate Planning Attorney where you live. If you are located in the Daytona Beach area, call my office for a free consultation.

Answer:

Think about whom you would like as Personal Representative for your estate. You don’t have to limit your ‘pool’ to family members and friends. Many lawyers, banks and other planning professionals have a person or department that can be named to carry out your wishes.

Create a living will. A living will, or “5 Wishes” as local hospitals call it, is a document which states your wishes should you be incapacitated and in a situation where you need to be placed on life support AND there is no expectation of your survival or recovery. Once completed your primary physician’s office may want a copy, so they are aware of the action you want taken in the face of difficult end-of-life decisions. 

Think about whom you would like as name a Health Care Surrogate or Power of Attorney. This person is tasked with making decisions about your health in scenarios not covered by your living will.  For example:  a patient with advanced Alzheimer’s Disease and two treatment options for a severe medical issue –someone with capacity needs to make the decision. As with your Personal Representative, this could be a non-relative, such as a third-party professional or clergy, if they’re willing to accept the responsibility.  Always talk to your potential designees. 

Check your named beneficiaries for your 401(k) plans and life insurance policies. These non-Probate Assets become Probate Assets if you fail to designate beneficiaries. They don’t HAVE to go to people –often people choose to leave some assets to a charity of their choice –if this is you there are several options to take care of these wishes ahead of time such as Donor Advised Funds and Charitable Trusts that may be able to help your taxes now, too.

Find an Estate Planning Attorney. Hire an Estate Planning Attorney to properly draft these documents and help guide you through this process.

These are just the first steps… go, talk to that Attorney. If you have a plan in place, review your options to ensure everything is accurate.

There are many pitfalls to be avoided when putting together your Estate Plan, especially if you try to do it yourself. For this post, I am going assume an Estate Planning Attorney is drafting your documents, which as you know is what I highly suggest everyone does. That said, naming beneficiaries is all on you and is a critical job when it comes to Estate Planning.

Before you can name who you want the asset to go to after your passing, you have to know what assets you have. If you own contractual assets (Annuities, Life Insurance, Retirement Accounts, to name a few) that include beneficiary designations, it’s important to name your beneficiaries; otherwise, your assets will transfer according to the contract’s default beneficiary provision –which is most likely your Estate. If your assets pass to your Estate, that could result in a timely probate process, additional estate expenses, and exposure to creditor claims to name just a few potential issues.

I discuss at length my client’s financial holdings at our initial meeting, and as their “homework” I have them gather copies of contracts, most recent statements, and current beneficiary designations. This exercise allows me to compile an Asset Inventory and advise my clients appropriately as to how they can “Probate Proof” themselves in conjunction with the documents I prepare for them. A full understanding of how your assets will transfer after your death helps create an Estate Plan that fulfills your wishes and prevents delays for your heirs. Designating beneficiaries incorrectly can have far-reaching negative consequences and is an essential part of your overall Estate Plan. If you are unsure about your Estate Plan or do not have an Estate Plan at all, make an appointment with an Estate Planning Attorney where you live. If you are located in the Daytona Beach area, call my office for a free consultation.

Short Answer:  Not naming a beneficiary or keeping their beneficiaries up to date on their contractual “non-probate” assets is the most significant mistake that folks routinely make regarding their Estate Planning.

Why it’s Important:   If you own contractual assets that include a beneficiary designation, it is important to name your beneficiaries and keep them updated; otherwise, you could omit a later-born child, leave assets to someone else’s estate or create a situation where there is no beneficiary because certain life events void beneficiary designations (divorce for example) and then your assets will transfer according to the contract’s default beneficiary provision –most likely the intestate succession laws under your state’s law. Retirement accounts are an example.

When you meet with your Estate Planning Attorney, discuss ALL your assets, not just what you think you should discuss –everything needs to be included in your Estate Planning and your attorney can only give the proper legal advice if they know all the facts. If you have questions regarding this issue or any Estate Planning issue and live in the Daytona Beach area, give me a call to schedule a free consultation.  

Answer: After you’ve created a Will, the next decision is where to store the Will so that your Personal Representative can easily find it when needed. A physical copy of a

Keep your Estate Documents in a safe place

Will should be stored in a safe and accessible place and the Personal Representative should know exactly where it is kept. I suggest to my clients they can keep their original Estate Planning documents in a safe deposit box or a fireproof safe in their home. As a final safeguard, I provide all my clients with electronic copies of their Estate Planning and suggest they share them with the Personal Representative. As original documents become less important accessibility remains a paramount concern, and so, no matter where you keep your documents, the most important thing is you tell your Personal Representative where they are located.