What Happens If I Die Without a Will in Florida?
Jill: Well, not who you wanted to. That’s for sure. I always like to tell people that you do want to do your estate plan because I like to know who’s going to get my stuff when I’m no longer around and I like to make sure it’s the people who I want.
David: Well, I like to tell people there’s no such thing as no estate plan. If you don’t do it, the government is already reading your estate plan for you and it is already decided for you who gets your assets.
Jill: Actually, the And it basically goes down and then up. So it looks to your children. Well, it depends. I didn’t even get to the married part yet, obviously your spouse and you know, there’s a lot of provisions there.
Then it goes down to your children. If you don’t have children, then it goes up to your parents. Then it goes out to sisters and brothers and it goes out to cousins. And guess what? If you think that you don’t have any [00:01:00] relatives, Trust me, there are air search firms out there and they will find them for you.
So they make sure whoever is probating your state that somebody is getting that money.
David: So if you don’t want it to go to some fourth cousin who you don’t like, or some relative, let’s take Then they’re actually called laughing heirs because they’re called up. Hey, guess what? This person who hasn’t spoken to you in 30 years died and you’re getting all their money.
It’s really a good idea to get your estate planning done so you can choose who you want and not have the state choose for you.
Can you write your own will in Florida?
Jill: I’m doing just great, David. And how are you doing?
David: I am fantastic. So we get a lot of questions to our website or to us, and I have a few we want to discuss. One of them is, can I write my own will and have it notarized in Florida? What do you think about that?
Jill: Well, you know, I think it’s a great idea.
I think you should draft your will. I think you should just get it notarized. Forget about those two witnesses that you need, because then it just means more work for us. And David, you and I, how much we charge for a probate now?
David: A lot more than we would charge for a will. Jill’s obviously joking, because what happens is, if you write your own will, And a will in Florida needs two witnesses.
So if you write your own will and you just have it notarized, the notary maybe could be one of the witnesses, but it’s not, it’s still, it’s not a valid will. So in some states, they have what’s known as [00:01:00] holographic wills, where you can write out your own will, in your own handwriting, and don’t have to have it witnessed.
Good luck. It’s not valid in Florida.
Jill: Well you can write. Okay. But in Florida, you can write your own will in your handwriting as long as there are two witnesses. Now, here’s the interesting part. You don’t need a notary. Isn’t that correct, David?
David: That’s absolutely true. A will does not have to be notarized, but it does have to be signed in the presence of two witnesses who have to be in the presence of each other.
So the testator, the person signing the will, and the two witnesses all have to see each other sign. It’s interesting because when, I mean, back in the day, back in ancient history, pre COVID, we would all sit in a room together, and everyone would watch each other, But with COVID, we had to take some interesting steps.
You don’t necessarily have to be in the same room with each other. You just have to witness and be able to see each other. So what we were doing when COVID, is we have a conference room and there’s a [00:02:00] big, you know, wall length window and people would stand on the other side of the window and one would be in the room and they can see each other sign.
But there was also distancing because of COVID.
Jill: And I think we’re kind of returning back to normal now. I know you’ve been doing in person signings for a while now, so I don’t really think we have that issue. And now everybody is really in the same room with each other.
David: Right. We’ve gone, I think we’ve mostly gone back to normal.
Who can serve as Personal Representative (Executor) in Florida?
David: Right, Jill, as you said, the personal representative is the term used in Florida, what other states call executor, they’re really synonymous, but we use the term personal representative, the personal representative is the person you appoint or nominate after you die, who’s in charge of your estate, they gather they Marshall your assets.
They identify any creditors, people you may owe money to, they get appointed by the court, and they’re in charge of finding, of finding your assets, paying creditors, and then distributing, paying any taxes, and the distributing money to the [00:01:00] beneficiaries. Now there’s some rules about who can serve as personal representative in Florida.
It has to be either a Florida resident or a relative who may or may not live outside Florida. So anyone who lives in Florida, assuming they’re not a felon, felons can’t serve, but anyone who lives in Florida can serve. Plus if your cousin in New York or your brother in Iowa wants to serve, they can serve too.
But if your best friend from back home growing up who still lives in Philadelphia who isn’t related to you, they can’t serve.
Jill: How about an in law, like a brother in law, something like that?
David: They can serve, provided you’re still married at the time of your death. But if you’re no longer married, it gets a little confusing.
Jill: Sounds like a plan. Thanks, David.
David: Thank you.
What is a Probate in Florida?
David: [00:00:00] All right, Jill. How are you doing?
Jill: Fabulous today, David, and yourself?
David: Excellent. So one of the questions we often get is what is probate? What does it mean? Do you want to try that?
Jill: Probate is the process of moving assets, cash, and anything that the deceased person owned to the people who will normally, I would say the people who should be getting it, but sometimes the people who shouldn’t be getting it wind up with it.
David: well, not everything is a subject
Jill: to probate, right? No, not. A lot of things aren’t subject to probate. And one thing that is the most important is the homestead, which we’re not going to discuss in this video because we can make about a seven-hour video.
David: Well, what about, let’s say a married couple who owns all their property jointly?
Jill: Well, luckily there’s something called joint tenancy with rights of entirety. [00:01:00] And so in that case, everything goes to the other person. And most joint accounts, when someone passes away, that automatically goes to the other person, regardless of who put the money in. Um, and there’s also something called a POD account, which is paid on death, which is if you put that on your account, the money automatically goes to the person who was named.
David: And they’re also revocable trusts if you properly fund them. This is correct. So
Jill: annuities, contracts, life insurance, anything that is contractual or has already been taken care of previously, generally is not subject to purpose.
David: So anything that’s owned by the decedent in their own name is subject, but anything else that doesn’t, that’s either owned jointly or as a beneficiary or is in a trust isn’t.
Jill: That’s absolutely correct, David.
David: Excellent.
Guardianships
David: [00:00:00] Hello everyone, I’m David Shulman of the firm Ginsburg Shulman. I’m here with my partner, Jill Ginsburg. Today we’re going to talk a little bit about guardianships. Now Jill’s a board certified elder law who focuses her practice on guardianships. So Jill, what exactly is a guardianship?
Jill: Guardianship is the process, and in some other states it’s called a conservatorship, but in Florida it’s a guardianship, of naming somebody a guardian to stand in somebody else’s shoes to be able to make financial and medical decisions for them.
David: And how does a guardianship happen? You know, what prompts a guardianship? Basically what’s the process?
Jill: The process, and that’s what prompts a guardianship, a prompts is a neighbor who notices that their next door neighbor is suddenly no longer able to cook for themselves and isn’t paying their bills.
A prompt is a daughter noticing that her mother is going downhill and is trying to live in her house but [00:01:00] can’t. A prompt is a daughter that just heard that her father just gave somebody a 100, 000 dollar car because he thought it was a good idea. These are things that.
David: Well, like the housekeeper.
Jill: Yes. Like the, you know, things like this, when you hear things like that, you know, those are the kind of instances where someone’s going to go petition for incapacity and move for a guardianship.
David: Let’s say I have a neighbor that I’m very concerned about, and I see them, I think they’re going downhill. I think they can’t make their own decisions.
I come to you and I say, Jill, as a guardianship lawyer, What would we do? What’s the process?
Jill: So the process is, as a neighbor, or anybody, you are going to what’s called Petition for Incapacity and Petition for Guardianship. A lot of times the neighbor doesn’t want to be the one serving, so while they will be the petitioner, there will be other people that can serve.
In Florida, you can serve if you’re over 18, [00:02:00] if you have not been convicted of a felony, so felons, you’re not allowed to serve. If you’re a relative, you can be out of state, but we also have something called a professional guardian. And these are people that are professionals that serve, that sometimes take the onus off the family or onus off a neighbor who doesn’t have the time or the funds to be able to do that.
David: So they file, the what’s known as the petition to determine incapacity with the court. I understand that the court then sends out an examining committee to examine what’s known as the alleged incapacitated person. Is that, how does that work?
Jill: So that’s exactly what happens. So once somebody petitions for incapacity and guardianship.
You petition for incapacity, you also file a petition for guardianship. That will ignite a bunch of orders that the court will have. So the court, number one, is going to appoint an examining committee, which is anonymous. They’re, you know, off the wheel. They’re appointed, three of them, a psychologist, a psychiatrist, and a social worker or a [00:03:00] layperson, are appointed to go out and examine.
The AIP, the alleged incapacitated person, that’s the person who you’re moving for guardianship for. And then once that happens, the AIP is also appointed their own attorney, which as you can see, those dollar signs are already racking up. So once those committee members go out, they file their reports with the court, and then the process continues.
David: So they come back, let’s say either all three or two out of the three file reports at the court and say this person is completely incapacitated and can’t make decisions for themselves. So what happens next?
Jill: Good question. So if two of the three or three of the three, as the statute says, say that the person’s incapacitated, then the judge is going to declare them incapacitated.
And at that point, they will be considered legally incapacitated. And then the judge will appoint a guardian for [00:04:00] that person, either the guardian who had petitioned, or if there was a fight or something else happened, some litigation, a professional guardian, there might be co guardians, which happens sometimes.
David: And, so it’s often a relative, the person’s adult child or children or a good friend or neighbor. But sometimes, as you said, it’s not available, so there has to be a professional who comes in.
Jill: Correct. I mean, you know, if you can get the neighbor or the family member, it’s a lot easier.
Professional guardians are great, but of course they charge. So again, those fees are going up. And then, you know, once the guardianship is in place, you now basically have to file everything with the court. So every dollar that’s spent, everything that’s done, you renovate a house, you move them into a new facility, they want their hair done, any of those things, those have to be petitioned for by the court.
And every year you are filing an annual report and you’re also filing an annual accounting so that every [00:05:00] last dollar is accounted for to the court.
David: And in your general work, you represent both the family member guardians and professional guardians.
Jill: Correct. I represent both family members and professional guardians.
David: So you have a lot of family members. So you represent, you know, when the family members have concerns, these are the type of people that you represent.
Jill: Correct. Those are the type, you know, a lot of people ask me, how do you determine someone’s incapacitated? It’s kind of just a feeling that you have.
There’s no medical term. There’s no way to determine anything, especially as a lay person, but you kind of know people, you kind of know how they act, and you can see if something’s not right, then, you know, a guardianship, unfortunately, might be needed.
David: And you use the word, unfortunately, because the reason that guardianships are often needed is because people don’t have their proper estate planning documents in place, like a durable power of attorney, which allows people to make financial decisions, a designation of health care surrogate, [00:06:00] which allows people to make health care decisions, and a living will, which sets forth people’s wishes for their end of life decisions.
So while guardianships are necessary, sometimes it’s better to avoid them with proper estate planning documents.
Jill: Absolutely, David. That’s the best way to put it. Look, there are times where you’re going to need a guardianship. There’s times where documents, unfortunately, won’t work or can’t work, or there’s just the situation where you need a guardianship.
But in so many instances, if you would just go and get these documents drafted and completed, you would really avoid a guardianship and make things a lot easier on yourself and your family.
David: That’s a great point, Jill. Well, thank you very much, everyone. That wraps up this week’s video, and I think next week we’re going to be talking about guardianships for minors, and we’ll talk about the difference between adult guardianships, which we just talked about, and then we’ll talk about the different types of guardianships for minors.
Thank you very much.
Guardianship of Minor Property
David: [00:00:00] Hello, everyone. This is David Shulman. I’m here with my partner, Jill Ginsberg. We’re Ginsberg Shulman, where we specialize in estate planning, probate, trust administration, elder law, and guardianship. And this week, we’re going to talk about the guardianship of a minor’s property. In our last video, we spoke about the guardianship of incapacitated persons.
But if you’re a minor, and if a minor is a person who’s under 18 and either inherits, or receives in a lawsuit a certain amount of money, then a guardianship of their property is required. Jill, why don’t you talk a little bit about that?
Jill: Well, with the guardianship of the property for a minor, obviously, you know, a lot of parents say to me, but you know, I’m the guardian.
Yes, for the guardian of the person, there will not be a guardianship. You obviously are able to make decisions for your children when they are under 18 years old, come back and talk to us when they’re over 18. But when they’re under 18. For property, if they inherit property [00:01:00] or if there is a settlement or some type of lawsuit, then if there is a settlement or property or inheritance greater than 15, 000, you will need a guardianship.
David: And what does that entail? What does that entail? What’s the process? How does that work?
Jill: Okay, so the way that a guardianship works for a minor is the parent or whoever the guardian, the person responsible for that child, petitions for guardianship of the child. It is a petition for guardianship. There’s also an application, a credit check, and one very important thing, you cannot be convicted of a felony.
If you are convicted as a felony, you cannot serve as a guardian and somebody else will have to serve. You also need to have a good credit score because obviously if you don’t have a good credit score, you can’t handle the money for a guardian.
David: So let’s say my distant uncle, [00:02:00] Ralph, passes away and leaves everything to my 10 year old child and leaves them 60, 000.
And now my 6 year old child or 10 year old child is about to inherit 60, 000. What do I have to do?
Jill: You will have to petition for guardianship of your child, of the property, and you will petition to put that 60, 000 under guardianship. Once it’s under guardianship, depending on the county that it’s in, you will either need what’s called a restricted account, or you will need a bond, and for the life of your child until they were 18 years old, you will explain to the court how much money you spend, you will file an accounting every year.
And, when they’re 18, you will file a discharge.
David: So even though there’s this money, there’s this $60,000 in this account, which is my for my kid. Let’s say I wanna pay for summer school or summer camp, or go on vacation. Every single time I wanna do something for that. And I have to go to the lawyer and the lawyer to go to the [00:03:00] court and petition the court for permission to spend the money.
Jill: Absolutely. You’re absolutely correct.
David: So it seems, and it’s only, it’s been 15, 000. It seems for decades. It hasn’t changed with inflation.
Jill: Nope, it’s been 15, 000 for quite a while. There are ways to work. I wouldn’t say work around that, but there are ways to work within the system. But yeah, for the most part, you’re going to need a guardianship and you’re going to need a lawyer and it’s going to go through court and you’re going to have to petition the court for all of your expenses.
David: And you’ve got to pay your lawyer too. And do these annual filings and to do the petitions to pay whatever the bills are. And sometimes when there’s lawsuit settlements that can’t be helped. But I think with regards to inheritance, with the proper planning, these types of guardianships can be avoided. And that’s one of the things that we do is we talk to our clients who may have minor children or minor [00:04:00] beneficiaries about how to avoid a guardianship of a minor.
It’s property and the best way to do this is to leave property through trust. Then if someone comes and they do a trust to leave the property to their minor, or the cash to their minor children or other minor beneficiaries, then they don’t necessarily have to go through the process of doing the annual guardianship.
Jill: No, no one wants to actually go through a guardianship. So if you can actually plan for it, and obviously the best way to do it, one of the best ways is a trust for a minor, then you’re better off by, you know, I would much rather have my estate planning done with trust for children that have to go through a guardianship and have some judge made, no offense to any judge, make decisions for my children, rather than me, at least being able to make those decisions through trust.
David: And plus at the end the child will probably end up with more when they reach the appropriate age rather than because you don’t have to pay the annual attorney’s fees. The other benefit I think with trust for minors [00:05:00] is that a guardianship, with a guardianship, the guardianship for a minor’s property expires.
On the minor’s 18th birthday, when the minor turns 18, then they go in and have it discharged and distributed to the minor Now an 18-year-old may not necessarily be mature enough to handle the money. However, with proper planning, a trust can drag it out and hold it longer and have a trustee pay for their tuition and for graduate school and for weddings and allow them to receive the money at a later age. But if you are in a situation where you are the parent of a minor, or you know a minor who’s inherited a significant amount of money, or is the beneficiary of a lawsuit settlement, then you’re going to need to do a guardianship of the minor.
And that’s something that we can certainly help you with.
Successor Trustees
David: Hello everyone, I’m David Shulman of the firm Ginsburg Shulman. I’m here with my partner, Jill Ginsburg, and we’re an estate planning, probate, guardianship, and trust administration law firm. And speaking of trust administration, that’s what we’ll be speaking about in this video. Jill, so we’ve spoken about what a revocable trust is in the past, but briefly, what is a revocable trust and how is it different from a will?
Jill: A revocable trust is an entity where you can pass your assets on to your heirs and beneficiaries without generally having to go through the court, or probate as it’s called here in Florida. And a will is another document that allows you to leave items, when you die to your beneficiaries, but unfortunately in Florida a will goes through the court and goes through a process called probate, which is the process of transferring your assets to your beneficiaries.
So a person creates a revocable trust. They’re generally called the settler or [00:01:00] the grantor. So what, they create the trust, they transfer their assets to it. Then what happens when the settlor dies? When the settlor dies, that trust now becomes irrevocable. So during the lifetime, the grantor settler can revoke it and do what they want.
Obviously, once they’re no longer around, they can’t really revoke it. So at that point, it becomes irrevocable. And at that point, a new trustee A successor trustee, as they’re called, will step in and will administer the trust.
David: So someone dies, there’s a new successor trustee, what are the first things a successor trustee should do specifically regarding the settler’s accounts?
There’s the bank account, their brokerage accounts, all these accounts that were owned by the trust. What’s the successor trustees, what’s one of the first things they should do?
Jill: The successor trustee, one of the first things they’re going to do is obviously they’re going to do documentations for the trust, which they’re going to need a lawyer for, but now they’re going to have to go to all the accounts and try and explain to [00:02:00] all of these banks how they’re the new successor trustee.
And I don’t know if you’ve ever dealt with a bank before, but good luck to that. Very difficult and it makes life very difficult and very hard for the trustees who spent a lot of time with different trust officers and different legal departments. And that’s where hopefully you and I come in, David, where an attorney can really make life much easier for a successor trustee by handling the legal departments and handling a lot of the legal issues.
David: So great. So someone comes to you. Well, first of all, let’s say someone comes to you with a trust that we didn’t draft and they say, you know, I’m appointed successor trustee of this trust. Your firm didn’t draft it. Can you help me? Can we help them?
Jill: Of course we can help them. I mean, luckily in the state of Florida, you’re not tied to any one attorney.
You know, a lot of attorneys keep copies of, keep the originals, not even copies of wills and trusts. David, you and I don’t do that. We don’t think it’s appropriate. It’s not not appropriate, but we just don’t think it’s a good idea. But if [00:03:00] somebody comes to us and we didn’t draft it and they want us to administer it, generally we’re happy to do that.
It depends on how it’s drafted, but I would say for the most part, we’d be happy to help administer it.
David: And in general, what do we as attorneys do to help people, to help successor trustees through the process of administering the trust?
Jill: Well, you know, we have our own checklist that we’ve made up from the years that we’ve been doing this, and we also guide them through the process.
What a lot of successors don’t understand is there’s Florida statutes that they have to follow. There’s timelines, deadlines, and very strict deadlines, especially with regards to documents that have to be sent to the beneficiaries. And these are all things that you and I could help them with, you know, especially legal issues and all other things.
You know, related issues to that, or things that a lawyer can help guide you through and make the process a lot easier.
David: Right. Well, thank you, Jill. I think this is a good introduction to Successor Trustees, and we’ll see you all in the next video. Thanks a lot.
Living Wills
David: Hello, everyone. I’m David Shulman of the law firm of Ginsburg Shulman. I’m here with my partner, Jill Ginsburg, and we’re in estate planning, probate, guardianship and trust administration and elder law firm. And this week we’re going to talk about living wills. Jill, what is a living will?
Jill: A Living Will is a document that lets people know basically how you want to end your life when the time comes.
I don’t mean in terms of euthanasia or any of those things. What I do mean is in terms of giving advice to those people who are treating you, and also allowing the people who are perhaps agents on your behalf to know really what you want.
David: So in Florida, there are three different circumstances in which you can decide or which you can express your wishes that you no longer want to be artificially prolonged by machines.
One is a terminal condition, then there is an end stage condition, [00:01:00] And the final one is the persistent vegetative state. And if you remember the Terri Schiavo case, Terri Schiavo was in a persistent vegetative state for over a decade. And there’s an argument on whether or not she would want to be disconnected between her husband and her parents.
And what a living will does, it lets your loved ones know what your wishes may be. Now, how is that different from a DNR?
Jill: So, David, a DNR is basically a document. First of all, we don’t do DNRs. They’re not executed by attorneys. They’re executed by either hospital people, hospital administrators, or by doctors.
And they’re executed for that particular situation. And that’s a basically a do not resuscitate order, which is a little bit different than the living will, which basically tells them you don’t want to be resuscitated. In that particular situation only. So the difference between that and a living will is the [00:02:00] DNR is specific only to that situation and not drafted by an attorney or somebody else.
And a living will is basically, I wouldn’t say a blanket, but basically covers your life and is executed by yourself. An attorney or somebody is of that nature.
David: I know that living wills are very popular among my clients, just our clients, just in my experience, I’d say over 99 percent of my clients pick at least persistent vegetative state and terminal condition or end stage condition saying that they no longer want to be prolonged.
There may be, there’s a very small percentage, that are specific religious beliefs that don’t, but it’s really something that everyone wants to express their wishes for. Now, what happens if someone doesn’t have a living will and they’re in that condition?
Jill: Well, that’s unfortunate, David. It really is. And it’s the Terri Schiavo case.
Where you just said where people fought for years [00:03:00] over this poor woman as she sat there and you have cases where people have to get guardianships, which we’ve discussed in other videos because there’s nobody to make that particular decision and they knew that that decision wanted to be made. Or there’s the really worst case scenario where you wanted a decision to be made and the complete opposite decision is going to be made.
Sometimes you’re going to be resuscitated because the doctors don’t know what you want and they want to avoid liability. So they’re going to do everything they can to keep you alive.
David: So the one important thing for people to know, it’s really if there’s no reasonable medical possibility of recovery. Sometimes people say, Oh, if I stubbed my toe, I don’t want my Children to pull the plug on me to get all the money.
Jill: Basically, one you’re incapacitated, obviously, if you can make your own decisions, you’re going to be making your own decisions and under 7 65 303-
David: Of those statutes.
Jill: Florida statutes, he [00:04:00] didn’t let me get there. Of the Florida statutes, these statutes basically give you guidelines. They don’t tell you exactly what’s going on, but they give you guidelines. So the guidelines are, you’re incapacitated, and basically there’s no reasonable medical probability of your recovery from such condition. You’re not going to recover. It’s basically the three day rule.
If you’re going to die within three days, then you’re not going to recover and there’s no reason for you to be resuscitated.
David: And another one, one final thing, is another option on the living will, is whether or not the person wants to withhold nutrition and hydration. It’s food and water, because sometimes they’re the only thing that’s keeping you alive.
It’s not medicine that’s keeping you alive. It’s a machine that’s feeding you. And people say, look, if I’m in a persistent vegetative state, if there’s no brain activity, then maybe disconnect the nutrition and hydration.
Jill: That’s also one of the options on a health care surrogate, which is something else [00:05:00] that we’ve discussed.
So definitely you want to do both of those things because you don’t want to have, you know, not be resuscitated, yet they’re going to give you food. So, yes, you clearly want to make sure that your treatments are in cohesion with each other.
David: So the healthcare surrogate and the living will work together because the healthcare surrogate, you appoint someone to make these decisions for you and the living will, you express what your wishes are to this person, to your healthcare surrogate, who’s going to make these decisions and to the doctors.
That’s it for this week. Thank you very much and we’ll see you next time.
Designation of Health Care Surrogate
David: [00:00:00] Hello, I’m David Shulman of the law firm of Ginsburg Shulman with my partner Jill Ginsburg. We focus in estate planning, elder law, probate, trust administration, and guardianship. And today we’re talking about one of the focal documents in your advanced directives, and that is a healthcare surrogate or a designation of healthcare surrogate.
Jill, what is a designation of healthcare surrogate?
Jill: Designation of healthcare surrogate is basically a document that allows you to designate somebody to make healthcare decisions on your behalf. Now, a lot of people say to me, but I’m alive, I can make my own healthcare decisions. Yes, this document does not overrule your decision.
And that’s the one thing that most people have to understand. It doesn’t overrule your decision. What it does do is it allows people to act when you can’t make that decision.
David: And what are some circumstances in which someone can’t make decisions? I mean, everyone [00:01:00] thinks of the obvious is I’m in a coma and there’s no life signs whatsoever.
But that’s not really what we’re talking about.
Jill: That’s actually one of the least things. There are so many things that happen. You’re in knee surgery, that’s a pretty common thing, and all of a sudden something happens and you need more anesthesia. Who’s going to make that decision for you if you don’t have someone to make it for you?
There’s so many other, I mean, you’re in some kind of surgery, the surgery goes south, the doctor needs to redirect and do another type of surgery. Who makes that decision when you’re under? I can go on and on and on with instances that happen in this particular situation, but if you had a, excuse me, if you had a healthcare surrogate, then you wouldn’t have that problem because you had designated somebody to make those decisions for you.
David: And who are good people to appoint to be your healthcare surrogate?
Jill: That’s probably one of the best questions. You know, a lot of people worry a lot about their durable power of [00:02:00] attorney and their finances and who to appoint. But I think the more important person is the person who’s making your health care decisions for you, because that’s actually the person who’s keeping you alive.
People who are not excitable, people who are calm, people have a good demeanor, and a good thought. People have common sense. These are the people, and it’s not always easy. Sometimes you’ll have to designate a family member who you don’t want to designate, but that’s your next of kin, and that’s the, you know, the only person you have.
But if you do have the choice, it’s really somebody who can take a step back and think in a situation where there is an emergency.
David: And it doesn’t necessarily have to be a family member.
Jill: Not at all. In fact, and my friend knows this. I have one of my closest friends who is in there as one of my healthcare surrogates.
So she can be there to be the voice of reason because I know there’s certain family members that would yank that plug out so fast and, no offense to them, because I understand, but there’s also people who are, you know, people with [00:03:00] reason in there. It could be a family member, it could be a friend, it could be a neighbor, it could be anybody who can make a good decision.
David: Well, a designation of health care surrogate is important for everyone. It’s especially important for unmarried people because spouses have certain rights. But when we’re living in a society where more and more people are not married, then there really has to be someone to step in to make those decisions if you’re unable to make them for yourself.
Jill: Absolutely. There’s a lot of cases where the hospital or the doctor will not even talk to you without having a health care surrogate. I know in a lot of instances I’m allowed access right away because I have health care surrogate in a good deal of instances, but yet there are people who are family members who are not allowed in because they’re not on that document.
So, yes, it’s extremely important. That somebody is appointed and has that so that somebody can make a decision and especially in a non married couple situation. You’re [00:04:00] right. David. It’s so important to have that document because they’re not going to allow the other person in or to make decisions. If it’s not there.
David: And let’s say, you have a designation of health care surrogate, and then you no longer like that person, you no longer trust that person. It’s not written in stone, right?
Jill: No, you can revoke it. I mean, obviously there’s several different ways to revoke it, but you know, you can name another person. You can draft an entirely new document revoking that document.
There’s a lot of different ways that, that, and obviously people die. So once that person passes away, they’re obviously no longer able to be your surrogate.
David: Got it. And without a designation of healthcare surrogate, the alternative, unfortunately, is a guardianship, which we’ve spoken about before.
Jill: In most instances, there’s some instances where a proxy can be used, and that’s a whole nother conversation, but in almost all instances, you’re going to need a guardianship.
David: So, we spoke about a power of attorney before. Today, we’re talking about a [00:05:00] healthcare surrogate. These are both very important documents that someone should have in order to prevent a guardianship, which could be onerous to everyone involved.
Jill: Oh, yeah. I mean, obviously, you know, like I tell everybody, you’re better off to plan.
I like when you control your own destiny, which is why you should go see my law partner and go have your documents drafted as opposed to coming to see me to have a guardianship done. Great. Thanks a lot.
Revocable Living Trusts
David: Hello everyone, I’m David Shulman from the firm of Ginsburg Shulman. I’m here with my partner Jill Ginsburg. We’re an estate planning, elder law, probate, guardianship, and trust administration law firm. And this week we’re going to talk about revocable trusts. Jill, what is a revocable trust?
Jill: A revocable trust in Florida, because that’s what we’re talking about, Florida law, a revocable trust in Florida is basically an entity that holds property and assets for someone and that is used to quote unquote avoid probate in Florida, but it also is used to pass assets on to your heirs and beneficiaries.
David: And why would a person want a trust as opposed to either a will or just doing nothing at all and saying, well, whatever happens after I die?
Jill: A lot of people say that to me. I really don’t care what happens. Well, when you leave a mess like that, basically what happens is everything goes through probate.[00:01:00]
Probate in Florida, while it’s not horrible, it’s really not the best thing in the entire world because you’re basically leaving a judge to make decisions on your behalf, and you’re also spending an awful lot of time and money moving something through the courts, which is never a good thing. Why a trust is a good thing to have versus a will, a will basically does leave your items to your heirs, but unfortunately you’re still going through probate in Florida, and that will has to be interpreted by a judge, which is also never a good thing.
A trust in Florida, especially a revocable trust, allows you to do two things. One, it allows you to leave property to your heirs, it allows you to avoid the probate we just discussed, and it also allows you to revoke it in case you’re not in a good mood that day when you’re still alive.
David: Now I know that a will is filed with the court, then as soon as someone dies, the law actually says the person, whoever has the will, has 10 days to file the will at the court.
But what about a trust?
Jill: You don’t [00:02:00] file a trust, and that’s really the beauty of a trust. A trust is only filed when there’s a lawsuit, there’s obviously exceptions to every rule, but generally a trust is never filed anywhere, no court, nowhere. And so a lot of times you want to keep things separate or you don’t want people to know what’s going on.
That’s also why a revocable trust is a really good entity to use.
David: So there’s a privacy aspect there too, because the will, the whole world, you found the will, the whole will world sees what happens, what your wishes were.
Jill: As you and I both know, there are people that actually look at the obituaries and will search through wills to see if there’s property in them or what’s in them.
So yes, there is no privacy with the will whatsoever. But yes, generally, there is with a trust.
David: So when someone sets up a trust, they generally, they themselves are the trustee, the person who makes the decisions for the trust. But at some point, what happens? They either get sick or they die.
And then what [00:03:00] happens?
Jill: That’s a great question, David. So in a REV trust, basically, you know how people like control. So most people are going to put themselves as their trustee. A lot of times, sometimes you’ll put you and your spouse. But what we encourage people to do is name an alternative trustee so that God forbid you become incapacitated, that person is able to take over.
And that really avoids a lot of aggravation and a lot of problems later on.
David: And who can or should people think about appointing as trustee?
Jill: Well, you obviously want someone who kind of doesn’t have some convictions or things of that sort.
David: They don’t have criminal convictions, personal convictions-
Jill: Moral and personal convictions are okay.
Criminal convictions, not so much. But, you want someone who, you know, is familiar with, numbers, if they’re going to be someone who’s dealing with your finances, someone who can pay your bills, someone who, they don’t have to be local, but [00:04:00] someone who can hire people on your behalf. So it’s really somebody who you feel that can take over and step into your shoes and act on your behalf.
David: And what if, you know, a person, for example, has minor children? How is a revocable trust beneficial for them?
Jill: Revocable trust is a great thing to have when you have minor children, because one thing you can’t do in Florida and most states is leave property and leave anything to minor children. And in a RevTrust, you’re not doing that.
You’re leaving it to the trustee who will be able to hold it for those minor children until they turn age of majority. Or if you don’t want them to have it at all, they can even do that.
David: Or delay it for until they’re 25 to 30, pay for their tuition, and avoids guardianship otherwise.
Jill: That’s correct.
That’s one thing that a RevTrust will do is it will avoid a guardianship for minor children. When minor children inherit property, they’re not allowed to inherit property or money. If [00:05:00] you don’t have a trust or something that holds this for those children, you will need a guardianship. And yes, that’s what a RevTrust will avoid.
David: And if a person’s still alive, but becomes incapacitated, how does a rev trust work in conjunction with, say, a power of attorney?
Jill: The power of attorney, and again, you know this too, depending on what’s initialed in the power of attorney, the power of attorney allows you to take care of assets outside of the trust.
But also sometimes in the trust, depending on what the power of attorney says, and the trust will allow that trustee who is now the trustee when the person is no longer able to be to act in conjunction with the power of attorney so that they’re able to pay bills, sell property, move property around, invest, and do things that the, and pay bills again, like I said, do things that that person would need to get done without a guardianship, which is always what you want to do.
David: And although it’s not a legal requirement, we generally [00:06:00] advise people to have the same person serve as the power of attorney and trustee.
Jill: It’s not a legal requirement. And sometimes as you and I know, you want them to check each other. So sometimes you might want them separately, but generally it’s easier to have them as the same person because they’re basically going to be looking at the same assets and they’re basically going to be managing the same money and you don’t want problems.
When one person has to get the permission of another. So a lot of times it is easier to have them both be the same person.
David: So it’s a good idea to have, for most people, to have a revocable trust or a rev trust to avoid probate, for privacy, and to hold assets for your children.
Jill: Absolutely. You know, you and I, David, both are huge proponents of rev trusts and, you know, a lot of people, do I really need it?
And we’ll get into paid on death later on, but paid on death accounts are not necessarily a great alternative to RevTrust. RevTrust really have a lot more [00:07:00] flexibility and are a lot better entities and a lot better, holding than some other ways to do things.
David: Right, well, thank you very much, Jill. And thank you everyone for watching and we’ll see you next time.
