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What is a Power of Attorney?
Apr 15, 2022
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.
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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.
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.
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