In this section, I want to list and briefly describe essential estate plan documents prepared for a Florida individual or family expecting children or who already have minor children. It is important to consult with an estate planning attorney as each document requires customization to ensure it properly reflects the wishes and intent of the parents. It is also important to ensure that the documents are properly signed in accordance with Florida law to ensure effectiveness when they need to be utilized.
Last Will and Testament
This document is used to name guardians of minor children should all natural / current parents die. In addition, if a Revocable Living Trust is not utilized, the Last Will sets forth who should get your assets – i.e. real property, personal property, and other assets such as funds in the bank (remember, minor children cannot own property or have a bank account solely in their own name) through the probate process.
If you name your minor child as the beneficiary of any of your assets (e.g. life insurance or bank accounts) a court-appointed guardian will be needed to represent the minor child’s financial interests until they turn 18. The recommendation is that it would be better for you to choose your child’s financial guardian in advance.
Or, because financial guardianships can be expensive (as the court remains involved) - we suggest Revocable Living Trusts.
Without a Will or Trust, you are relying on the laws of “intestacy” (i.e. the state has a preferred order of who gets your assets when you pass away if there is no Will) and your family will have to decide with the court – and perhaps fight – over who becomes the legal guardian of your minor children.
Without advance guidance, courts often prefer to keep children with the closest family member – but what if you don’t want certain family members to raise your children?
Even if you have not accumulated much wealth, it is still important to set this framework in advance to make your wishes clear.
Health Care Surrogate with HIPAA Authorization
For families with young children, we suggest two types of Health Care Surrogate documents:
(1) Health Care Surrogate Designation for you (the adult) – this document lets you designate who is empowered to make medical decisions, consent to medical treatment (surgeries, diagnostic, etc..), and access your health records.
(2) Health Care Surrogate Designation for your minor children – this document designates who you want to empower to make these decisions should you (or other parent) be temporarily unable to make medical decisions for the children.
Preneed Guardian Designation
You, the adult, can name a preneed guardian for yourself should you become incapacitated…. And file this document with the court (and if a petition for guardianship is ever filed, the court will already see that you have let the court know who you prefer).
You can also file a Preneed Guardian for Minor Declaration with the court which would indicate that, if the last surviving parent is temporarily incapacitated, permanently incapacitated or has passed away, who the parents prefer become the legal guardian of their minor children.
Its good to name a preneed guardian for your minor children - as opposed to simply relying on the Will - because the Will only takes effect after you pass away. If you become incapacitated, but do not pass away, then the Will may never be invoked. In addition, Wills can get lost (they are not recorded or deposited with the court in advance). Wills can be lost or difficult to find. Preneed Guardian Designations are recorded with the court.
Also choosing a legal guardian for minor children, in advance, prevents family fighting. You can choose a family member(s) or friend(s) based on their location, values/religious beliefs, financial situation, etc.
Not to be confused with a Last Will and Testament. A Living Will in Florida, allows you to set forth your wishes for end-of-life medical care if you are incapacitated and unable to communicate. If you are in an endstage/terminal condition or in a persistent vegetative state; and there is no reasonable likelihood of recovering, then the Living Will is where you indicate which life-prolonging procedures do you want administered or withheld.
Revocable Living Trust
Finally, if you want to avoid the probate process, the Revocable Trust is for you. Also, while an 18 year old is legally an adult, I have yet to meet one who is mature enough to handle money. Utilizing a revocable trust allows the trustee you designate to maintain control of your money and property for the benefit of your children until they reach the age you think is appropriate (some parents don’t want their children having outright control over significant sums of money until they are 25, 30 or even older or upon the attainment of certain goals).
Importantly, revocable trusts are amendable and revocable at any time while one of the creators of the trust remains cognitively capable of doing so.
Finally, once an estate plan is created, it is also critical to notify your estate planning attorney of any life changes that may necessitate adjustments in the estate plan such as marriage, divorce, inheritance, the sale of a business, etc.
Florida Estate Planning Considerations with Surrogacy and Other Assisted Reproductive Technology.
For anyone expanding their family through surrogacy or other assisted reproductive technology methods such as IVF or egg/sperm/embryo donation, it is equally as important to consider establishing an estate plan to protect the future children. With third party reproduction, there are two main considerations relating to estate planning:
(i) the estate planning considerations for the surrogate and
(ii) the estate planning considerations for the child via the estate documents of the intended parent(s) (i.e. the parent or parents having a child through assisted reproductive technology).
Florida surrogacy attorney (and my wife), Marla Neufeld, Esq, writes more about the various estate planning considerations when a surrogate is involved. You can read more about by clicking the link, but a brief summary is below.
Surrogate Estate Planning Documents
During the course of the parties surrogacy contract negotiation, the lawyers for the intended parents and surrogate may recommend the surrogate sign certain estate planning documents such as a living will and medical power of attorney setting out her intent to remain on life support, and a health care designation vesting the decision making power of the children in the intended parents. These documents are typically prepared prior to the surrogate becoming pregnant or shortly thereafter to make sure the surrogate’s intentions are documented. Intended parents also typically purchase a life insurance policy for the surrogate so her chosen beneficiar(ies) are protected if the surrogate dies during the surrogacy process.
Intended Parent Estate Planning Documents
The estate planning documents for the intended parents are the same documents listed at the beginning of this article as it would be the documents recommended by an estate planning attorney for a new or prior parent, regardless if the child was born via surrogacy or third party reproduction.
The same considerations need to be taken into place for an intended parents’ estate documents such as naming a guardian and creating a will/revocable trust, etc. But it is imperative that an intended parent explain to their trusts and estates attorney the method of conception to ensure that the estate documents do not contain any limiting language that could potentially preclude the child from inheriting from one of the parents. For example, if the child was born from donor sperm or donor egg, you want to make sure that the estate documents are not limited to only biological children. Another consideration is if your third party reproductive process involves an adoption, you want to make sure you estate documents do not exclude children born via adoption proceedings. Regarding the issue of limiting language in estate documents, you may also need to review any grandparent(s) estate document to ensure such documents do not contain limiting language such as biological children or precluding children born via adoption to make sure the future children are not excluded from their grandparent inheritance rights.
Pursuant to Florida Statutes 742.17, a posthumously conceived child may bring a claim against the decedent’s state but only if the decedent provided for the child in the decedent’s will. Based on this Florida inheritance law, should a parent want to use frozen genetic material after the death of one of the genetic contributors (i.e. a wife using her deceased husband’s frozen sperm in an already frozen embryo), in order for the posthumously conceived child to inherit from the deceased father, the father must have contemplated such inheritance in his estate plan. This is another issue to discuss with your estate planning attorney to protect the rights of any children born soon or in the distant future.