What is Probate?
Probate is a process for gathering the decedent’s assets, paying taxes, claims and expenses and distributing assets to beneficiaries. This is the first legal step of administering the estate of the deceased person through a will. Florida law establishes two types of probate administration: Formal and Summary. These two types of administrations vary depending on the size of the estate.
During the probate process, it is the responsibility of the executor to prove in court the will is valid, inventory and appraise the deceased’s property, pay debts and taxes, and distribute the remaining assets to beneficiaries. This can take a few months or a few years, depending on the complexity of the deceased’s estate.
If the fiduciary fails to execute this process, then litigation will usually occur and the fiduciary will be held personally liable.
Florida Power of Attorney
A Power of Attorney is a legal document in which a person, the “principal” gives another person, the “agent,” the authority to act on their behalf in certain circumstances. These circumstances can be narrow or broad, depending on the way the document is written.
The Power of Attorney is created to perform almost any legal act that the principal cannot do. Acts such as sell a car or home, access bank accounts, or make health care decisions. There are three kinds of POAs in Florida:
- Limited Power of Attorney gives the agent authority to conduct only a specific act.
- General Power of Attorney gives the agent a much broader authority, but there must be a list of the acts the agent is entitled to perform.
- Durable Power of Attorney remains in effect if the principal becomes incapacitated. This is not the case with the other two forms. There must be specific language in the document stating that the POA will continue if the principal becomes incapacitated. Most POAs in the state of Florida are Durable.
POAs should be drawn up by an attorney. Pre-printed forms are likely to fail in providing the desired protection because every principal’s needs are different.
If the agent is unsure of whether they are authorized to perform a specific act, they should check with an attorney. If the agent performs an act they are not legally entitled to, he or she can be punished civilly and criminally.
Under a Power of Attorney, an agent may only act on the principal’s behalf while the principal is still alive.
No matter what your net worth is, it is important to have an estate plan in place. To ensure your estate is protected, make your wills, trusts, and other estate planning documents as detailed as possible.