Elder Law Archives

Do you have per stirpes?

As an estate planning lawyer, one of my principal objectives in drafting a client's Will or Trust is to name the beneficiaries which the client wants to receive their estate. Often this will be a spouse or children and in some cases, other family members. What happens if the person named dies before the person who established the Will or Trust? Does the intended devise (gift) go to the deceased beneficiary's children or to someone else? The answer is, "it depends."

Can you name two people to act as co-agents under your Florida Power of Attorney?

As an estate planning lawyer, I always recommend that clients have both a Power of Attorney for Healthcare and a Durable Power of Attorney for non-medical matters. In each of those documents, the client is authorizing a person or persons to make decisions and act on their behalf. The Power of Attorney for Healthcare covers decision-making for medical and health issues; the Durable Power of Attorney for covers decision-making and taking action on non-medical matters such as finances, banking, and bill paying. So, can you authorize two or more people to act as co-agents under these instruments and if you do, can one agent act without the other or does action require all agents to act together? The simple answer in Florida is that you may name co-agents and one co-agent may act without the other co-agent.

Can I Use a Person's Durable Power of Attorney After They Die?

As estate attorneys, we commonly see situations where a fmaily member comes to us after their relative has died. They'll explain that their relative died owning property or a bank account and they want to know whether they can use the deceased person's Durable Power of Attorney to transfer these assets. The answer is a definite "No!"

What are Letters of Administration and How Do I Get Them?

Quite commonly, after their loved one has died clients come to us as estate attorneys and they tell us that a bank or other financial institution is asking for "Letters of Administration." When that happens, the client will ask us how do they get such Letters. 

Should my Will or Trust direct that my Homestead be sold upon my death?

As an estate lawyer, it is not uncommon to have clients ask that their Will or Trust be prepared directing that their primary residence (i.e. their homestead) be sold upon their death. Often their motivation will be to avoid disputes among their children over the home. Sometimes, it is because they believe none of their children want the home, so why not just sell it? From an estate planners point of view, the question becomes whether this is a good idea.

What is Ancillary Probate Administration in Florida?

In Florida, it is not uncommon for persons to own real property or other assets in the state while not being residents of the state. Each Winter, residents of northern states travel to their Florida properties to spend the cold months in Florida's warm weather. Many of these persons own homes in both their home state and in Florida. So what happens if these residents of other states die and still own Florida real property? Often the result is that two probate administration proceedings will need to be opened. The probate of the resident state is commonly referred to as the "domiciliary probate" and the probate in Florida would then be the "ancillary probate."

A Surviving Spouse's Right to Florida Homestead When There's No Will

The laws in Florida governing homestead real property can be complex and confusing. This is particularly true when the homestead is titled in the name of only one spouse who dies and does not leave a Will or Trust devising the homestead to the surviving spouse. This is not a scenario which most spouses would want.

Statutory Duties Under a Power of Attorney in Florida.

In recent years, Florida has "beefed up" Chapter 709, which sets forth the statutes governing Powers of Attorney. Among the directives contained in that chapter are certain duties which govern an agent authorized to act under a Power of Attorney. These duties apply notwithstanding provisions in the Power of Attorney to the contrary. 

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