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Wills Vs Trusts: What’s the Difference?

Fri, 15 Apr 2022 18:43:46 GMT

Wills and trusts are estate planning tools utilized to assist in allocating your assets to when you pass away. Wills and trusts both have unique benefits and purposes. Below, we discuss the differences between wills and trusts.

What Is a Will?

A will is a document that allows you to specify how you would like your property, possessions, and assets divided among your beneficiaries after you pass away. Many items may be included in your will, such as family heirlooms or funds that you would like donated to charity. In a will, you should name an executor who will oversee the asset division process and be the point of contact between family members.

An advantage of a will is that it is a personal way to indicate your final wishes to your family and friends. A will can include a personal note to your family members and specify how you would like your assets divided. Without a will, if a probate case is needed your estate will be bound by the intestate statutes.

Creating a Will

For a will to be valid, you and two witnesses must sign it. A will is irrevocable once you pass away, but you maintain control over your assets while you are living. Depending on how your assets are titled, your will may need to go through the probate court.

What Is a Trust?

Trusts are made primarily for financial purposes. A trust makes a financial agreement between the person who creates the trust (the grantor), the person in charge of overseeing the trust (the initial trustee/s), and the people who will receive funds that are in the trust (the beneficiaries). Trusts can allow grantors to pass money to beneficiaries without going through the probate court. Trusts may be an excellent estate planning tool.

Creating a Trust

Trusts go into effect once they are created. There are two primary forms of trusts. The benefit of creating a revocable trust is that, if funded appropriately, the probate process in Florida can be avoided and the trust can be amended throughout your life. An irrevocable trust cannot be altered once established, and the trustor loses control of the assets placed within the trust while they are living. Irrevocable trusts can help in navigating tax issues, Medicaid issues, and life insurance payouts.

Wills, Trusts, and Estate Planning With Jason D. Berger

At the Law Office of Jason D. Berger, we will discuss the various estate planning options with you to determine which estate planning tools best serve your needs. Call us today at 772-403- 5880 or request an appointment here to get started.

What is a Power of Attorney?

Fri, 15 Apr 2022 18:43:45 GMT

What happens in a situation where you cannot make decisions for yourself? In these circumstances, you may desire to have someone else have the legal authority to act on your behalf. A Power of Attorney is the legal authorization allowing someone to act on behalf of another. Below, we discuss what a Power of Attorney is, common types, and situations where they may be used.

What Is a Power of Attorney?

Power of Attorney (often referred to as a POA) is a legal document delegating authority from one person to another. The person delegating authority is called the “principal,” and the person receiving authority is called the “agent.” The type of authority granted depends on the language within the document. A Power of Attorney is a generic document used in various situations, including everyday tasks and business affairs.

When Do You Need a Power of Attorney?

There are situations where a Power of Attorney may be beneficial. Here are some common tasks a Power of Attorney may help delegate:

Financial:

A Power of Attorney can authorize an agent to access bank account information and conduct financial transactions. A bank or other financial institution may require proof of the POA for the agent to act on the principal’s behalf.

Legal:

Legal POAs give agents the ability to sign contracts and documents on behalf of the principal. A Legal POA can be general or can be for a limited specific task.

Domestic:

A principal may have a Power of Attorney that delegates various everyday household tasks, such as paying bills or maintaining a home. Power of Attorney Types:

Limited:

A limited Power of Attorney is only applicable for particular tasks that expire on a specific date or after a task is completed. For instance, someone selling a home in Florida who lives out of state may sign a limited Power of Attorney for an agent to oversee the closing process on their behalf.

General:

General POAs delegate any or all legal acts on behalf of the principal. With a general power of attorney, the principal must specify which tasks the agent can perform.

Creating a Power of Attorney:

A Power of Attorney should be carefully crafted by a Florida attorney, such as Jason D. Berger. A POA should specify the principal, the agent, and a list of tasks and authority the agent may be given. The principal and two witnesses must sign POAs. A notary must acknowledge the principal’s signature for the POA to be valid. Usually, a POA goes into effect as soon as it is signed. A Power of Attorney is terminated if the principal revokes it, the purpose of the POA is complete, the term expires, or the principal passes away

Power of Attorney With Jason D. Berger

The Law Office of Jason D. Berger can help establish your Power of Attorney. Please request an appointment or call our office at 772-403-5880 for more details.

Signs That it is Time to Update Your Will

websites@hibu.com (Hibu Websites) — Mon, 07 Mar 2022 19:50:13 GMT

A last will and testament is the recommended way to indicate your final wishes. Your will specifies how your property, possessions, and assets should be divided among your family, close friends, or charitable organizations. Once your will is created, you will want to review it and make changes regularly. Keeping your will updated will ensure a smooth transfer of your property and possessions after you pass away. Here are the primary signs that it is time to update your will.

It has been more than five years

You should review your will every five years. Laws and guidelines involving estate planning often change, including estate tax guidelines and line of succession changes. An estate planning attorney can ensure your will is valid and updated based on the latest rules and regulations.

You had a baby

Whether it is your first child or fifth, you may want to update your will each time your family grows. This allows you to name a guardian for each new child and add them as a beneficiary. Adding a guardian is one of the most valuable steps a parent can take when updating their will. New grandparents should also consider updating their wills to include grandchildren if desired.

You moved

Estate planning laws vary in each state. If you moved to Florida from another state, it is wise to have a Florida attorney review your will and make sure it is valid in Florida. Purchasing or selling a home is another reason to update your will. If you recently bought a house, this new asset is now part of your estate and should be included in your will. If you sold a home, you might have extra funds on hand that you wish to leave to your beneficiaries.

You changed marital status

Anytime you experience a change in marital status, you should update your will. If you get married, you can include your spouse as a beneficiary. If you are remarried and have stepchildren, you may also wish to include them in your will. Stepchildren do not fall into Florida’s intestacy line of succession, so the only way to ensure your stepchildren receive an

inheritance from you is to include them in your will. If you get divorced, you may wish to update your will to remove your ex-spouse and change your name, if applicable.

An executor or beneficiary passed away

A will’s executor fulfills a vital role during the probate process, so if a previously named executor in your will passes away, you will want to update the document and name a new executor. You will also want to update your will if a beneficiary passes away. If you do not, that beneficiary’s share of the estate may need to follow the Florida statutory provisions. If you wish

to allocate that part of your estate differently, it should be specified in your will.

You experience a change in finances

Significant financial changes, such as a job promotion that puts you in a higher income bracket, winning the lottery, or inheriting funds from another estate, are all reasons to update your will. Assess the current funds you leave your beneficiaries, and decide whether to increase these amounts or leave a portion of your estate to a charitable organization.

Jason D. Berger, P.A.— Florida estate planning attorney

At the Law Office of Jason D. Berger, P.A., we can assist you with creating, updating, and executing your will. We serve residents throughout the Treasure Coast, including St. Lucie, Martin, Indian River, and Okeechobee counties. Call us today at 772-403-5880 or schedule an appointment to discuss how we can help you draft or update your will.

What Are Advanced Directives?

websites@hibu.com (Hibu Websites) — Mon, 07 Mar 2022 19:41:33 GMT

What happens when you are in a medical situation where you cannot make decisions for yourself? Advanced directives prove beneficial to many families in this situation. Advance directives are legal documents that indicate how you would like your medical decisions to be made if you cannot do so yourself. There are many kinds of advanced directives, including ones that allow you to appoint someone to make decisions for you. The benefit of having an advance directive is that it will enable you to clearly state your wishes for medical treatment if you are incapacitated. This takes the burden off of your family members to make life-altering decisions for you and allows them to understand your desires for medical treatment.

Types of advance directives

Living will

A living will is an advanced directive that specifies what life-extending measures you would like if facing a terminal illness, life-ending situation, or are in a long-term coma. Having a living will allows you to specify your wishes for end-life care if you cannot communicate during that time.

Do not resuscitate and do not intubate orders

Commonly referred to as DNR or DNI, these orders specify what life-saving techniques you would like performed if facing cardiac or respiratory arrest. If you have a DNR, medical staff will not perform CPR. With a DNI order, you will not be placed on a ventilator or have a breathing tube inserted. First responders must be aware and see the order before withholding

treatment to comply with your wishes. Due to this, it is advisable to keep a copy of your order on you in case of an emergency.

Durable power of attorney

A power of attorney is the legal distinction for giving someone else the ability to make decisions for you. A general power of attorney covers a variety of everyday tasks, such as paying bills or handling your finances, and remains in effect while you are conscious. In Florida, a durable power of attorney goes into effect immediately and expires when a person expires.

Health care surrogate

Appointing a health care surrogate is similar to a durable power of attorney but only applies to medical decisions. A health care surrogate should be someone you trust who is able and willing to make medical decisions for you. Health care surrogates can make decisions if you are permanently or temporarily incapacitated. The benefit of naming a health care surrogate is that

you can decide in advance which person or persons will be in charge of your medical care decisions. If you choose to name a health care surrogate, they should be given authority to access your confidential medical information according to HIPAA regulations.

Anatomical donation

An anatomical donation, such as deciding whether or not to become an organ donor when you receive your driver's license, may be the first advance directive many people make. Having a separate advance directive for anatomical donation is an optional way to specify whether you want your body, organs, or tissue donated to science or healthcare research upon death.

Treasure Coast estate planning attorney

Although an attorney is not required to establish an advance directive, they are a part of any proper estate plan. Jason D. Berger, P.A. is an experienced estate planning attorney that can help you with all aspects of estate planning, including developing advance directives for any situation. Request an appointment to discuss what advance directives are right for you.

What Happens If You Die Without A Will

websites@hibu.com (Hibu Websites) — Mon, 07 Feb 2022 21:46:16 GMT

A will is an essential part of estate planning that provides instructions on how you would like your assets passed on to your beneficiaries after you pass away. However, you may be wondering what happens if you pass away without a will in Florida. This is called "intestate or intestacy." As discussed below, when you die intestate, those who will inherit your "probatable assets"/estate and property will be defined by Florida's intestacy laws.

Intestate line of succession

Chapter 732, Part 1 of the Florida Statutes, codifies intestate succession, spelling out various

inheritance scenarios if someone were to pass away without a will. It is important to note that

only property without a named beneficiary/TOD/POD nor a named co-owner would fall under

intestate succession. The "probatable assets"/estate would be divided in the following succession

according to the Florida Statutes.

Surviving spouse

If all of your children are from the same marriage, or you are married without children, your

spouse will inherit 100% of your "probatable assets"/estate. If you have children from a previous

relationship or marriage, your spouse will receive 50% of the "probatable assets"/ estate, and

your children would divide the other 50% of the "probatable assets"/ estate. Surviving exspouses are not entitled to inherit any estate assets, absent a legal agreement/court-ordered

agreement to the contrary.

Children

Your children split your estate evenly if you were not married at the time of death. If one of your

children passed away but has surviving children, your grandchildren would receive that child's

share in the "probatable assets"/ estate. Adoptive and biological children have the same rights

according to intestacy laws.

Parents

If you pass away without a surviving spouse or children, your "probatable assets"/ estate will go

to your parents or grandparents.

Siblings, nieces, and nephews

If you have no spouse, children, or surviving parents, your "probatable assets"/ estate will be

split among your brothers and sisters. If there are no surviving siblings, your "probatable assets"/

estate will pass on to any nieces or nephews.

Other blood relatives

If no one meets the above criteria, your "probatable assets"/ estate will be inherited by your next

closest blood relatives. These relatives can reside in Florida, another state, or another country.

Intestacy laws determine that full-blood relatives will receive more than half-relatives. For

instance, if you have half and full-blood siblings, they would not share the estate equally.4

What happens to minor children if there is no will?

If you pass away with children under 18 in your care, the surviving biological parent may

become the children's sole guardian. If there is no surviving parent, a family member may

petition to obtain guardianship/custody of your children.

Will the state take my assets without a will?

While many believe the State of Florida will take over your entire estate if you do not have a

will, this is usually not the case. If you die without a will, your estate follows Florida's intestate

line of succession to divide up your "probatable assets" / estate. Then, any remaining blood

relatives will be notified and entitled to the estate. In the rare case that you do not have any heirs,

blood relatives, or other eligible next-of-kin, the estate becomes "escheat" and will become

government property.

Benefits of having a will

If you do not agree with how Florida statutes would divide your "probatable assets"/estate,

having a will is a proper way to legally document your instructions of who is in charge and how

you would like your estate divided (including personal possessions and family heirlooms).

Create a will with Jason D. Berger, P.A.

The Law Offices of Jason D. Berger, P.A. can help residents throughout the Treasure Coast,

from Hobe Sound, Jensen Beach, Port Salerno, Rio, Stuart, Fort Pierce, Port St. Lucie, Vero

Beach, Martin, Okeechobee, Indian River, Palm Beach and St. Lucie counties in establishing

comprehensive estate plans. Call us at (772) 403-5880 or schedule an appointment to learn

more.

Step-by- Step Guide to the Probate Process

websites@hibu.com (Hibu Websites) — Mon, 07 Feb 2022 21:46:14 GMT

Probate is not required in the State of Florida. It is vital to understand proper “probate avoidance planning,” along with all of the lengthy, costly, and potentially unnecessary steps involved with the probate process as you prepare your estate plan. Here is a step-by-step guide to the probate
process, which can be avoided in Florida.

What is probate?

Probate is the legal process in which a person's will, trust, or the Florida Statutes shall be

followed in the adjudication of remaining assets of the estate (which are otherwise unable to be

acquired without a court order), along with the noticing and adjudication of remaining debts of

the estate.

Steps of Probate

1. Meet with an estate attorney

The first step after the passing of a loved one is to meet with an estate attorney and gather the

necessary documentation to present to the probate court (if necessary.) This includes the death

certificate, will/trust, financial statements, and property deeds.

2. Petition

Once the proper documentation is gathered, the lawyer will present these documents to the

probate court, officially beginning probate. The lawyer must submit these documents to the

county where the deceased resided. The probate court will determine the will’s validity and open

the estate during this time. If the will is valid, the executor is given authority to handle the

estate.

3. Notify beneficiaries and creditors

Once the estate has been opened, it is the executor’s responsibility to formally notify any

beneficiaries that the estate is open. The executor will also inform any known creditors about the

opening of the estate. This may include credit card companies, banks, or mortgage lenders. Upon

publishing, creditors have three months to make a claim with the estate. The executor shall list

known creditors and present their claims to the court.

4. Establish an estate bank account

Establishing and maintaining the estate bank account is a primary responsibility. All funds shall

be placed in this account and held until valid creditor claims and expenses are paid.

5. Inventory the estate

After creating the estate bank account, an inventory of the entire “probatable” estate is required.

This can include real property like homes or timeshares, bank accounts, stocks, vehicles, and

other assets. The value is presented to the court.

6. Pay debts and expenses

After the three-month creditor period in which creditors may file a claim, funds in the estate

bank account are used to pay off or reimburse proper claims, as well as bills or expenses. These

could include utility bills and home maintenance expenses for a property owned by the deceased

during probate, plus court and attorney fees.

7. Asset division

Once debts are satisfied, the remaining estate account assets can be distributed to beneficiaries

pursuant to Florida law.

8. Petition of discharge

After debts are paid and assets divided, the probate attorney will present necessary documents to

the court to show that the estate was handled legally and properly. If the probate court is

satisfied, a discharge petition will be signed, officially ending the probate process.

Jason D. Berger, P.A.: Treasure Coast probate attorney

While the probate process can be avoided in Florida, the Law Office of Jason D. Berger, P.A.,

can certainly assist your family with probate matters. Call us at 772-403-5880 or request an

appointment to get started.