Frequently Asked Questions (FAQ)

Having a Will means that my family is able to avoid probate, right?

If you die leaving individually owned assets that are not deemed exempt, then your family will have to probate your estate. Many people believe that with a Will, they can simply have their family members present the Will document to their financial institutions to accomplish title transfer of their assets. This is not the case. If probate avoidance is your objective, call me for an appointment so we can discuss what options may be available to you.

What are POD/TOD designations?

Payable on death (POD) and transfer on death (TOD) are beneficiary designations that can be denoted on your financial accounts to indicate who is to receive said account(s) upon your death. Accounts with these designations do not require probate, unless the designations are invalid at the decedent’s death.

How can I allow someone access to my accounts without naming them as a joint owner?

Executing a Durable Power of Attorney (DPOA) enables you to designate an Agent that may transact business on your financial accounts in your place and stead, but only while you are living. Powers of attorney are immediately ineffective upon your death. The agent is able to access your accounts in much the same way that you are able to. For instance, they can pay bills for you, and may do anything that you authorize within that Power of Attorney. However, unlike joint ownership, wherein the presumption is that the surviving joint tenant owns the account, upon your death the account will be distributed according to your wishes, i.e. pursuant to beneficiary designation, intestate succession, or Will.

Are the Will and associated documents I drafted in another state valid in Florida?

Since Florida is a state that is favored by retirees, we get this question a lot. If Florida is your state of residence, and where your Will ultimately will be probated, it is a good idea to have your Will reviewed by an attorney, as Florida laws governing execution are generally more stringent than other states. With that being said, Article IV, Section 1 of the United States Constitution, the Full Faith and Credit clause, addresses the duties that states within the United States have to respect the “public acts, records, and judicial proceedings of every other state.” This means that documents executed in accordance with the formalities of the state where the documents were drafted, must be recognized in Florida as valid. Please note, while valid, Florida courts may still require the attorney administering the estate to file additional documentation to satisfy Florida requirements, if the execution of the documents was not in conformance with Florida requirements.

For powers of attorney lacking execution before two witnesses and a notary public, and executed in a state other than Florida, financial institutions may require that the principal furnish an “opinion of counsel,” from an attorney licensed in the state where the documents were drafted. The opinion of counsel is provided at yours or your agent’s expense. Said opinion of counsel letter will address any matter of law concerning the power of attorney, including the due execution and validity of the power of attorney. A financial institution may reject a power of attorney if the principal or agent do not provide the requested opinion of counsel.

Should you be desirous of making any substantive changes to your estate planning documents, or in having your documents reviewed, please contact our office.