In general, depositions can be given by any person involved in the case. However, it is important to note that there are some witnesses that are disqualified from testifying, which may include incapacitated individuals.

What kinds of witnesses can testify?

A witness is considered competent — and, thus, able to testify — unless the court determines otherwise.

Competency is measured by whether the “prospective witness has ‘sufficient intelligence to understand the nature of an oath and to give a reasonable, accurate account of what he has seen and heard, vis-a-vis the subject about which he is interrogated,’” Kaelin v. State, 410 So. 2d 1355 citing People v. Parks, 41 N.Y.2d 36, 390 N.Y.S.2d 848, 359 N.E.2d 358 (1976).

The level of an individual’s competency is also established when a witness has sufficient understanding to comprehend the obligations of the oath and is capable of providing insight on a correct amount of the matters, which the witness has seen or heard relative to the question at issue. Kaelin v. State.

Who is unable to testify?

The court has often been faced with the issue of deciding whether or not an individual is competent enough to testify. This is often the case when a prospective witness is elderly or suffering from certain mental or physical illnesses. 

Generally, the court allows for an individual to provide testimony as a witness, unless, such individual is (1) incapable of expressing himself or herself concerning the matter in such a manner as to be understood, either directly or through interpretation by one who can understand; the individual is (2) incapable of understanding the duty of a witness to tell the truth; or that the individual (3) is unable to perceive and remember events. Fla. Stat. 90.603; Rutherford v. Moore, 774 So. 2d 637.

Are individuals in a guardianship able to be offer depositions?

There are no separate laws that govern individuals in a guardianship and their ability to offer a deposition.

Instead, the court has held that an individual cannot be disqualified to testify merely because they have been found to be legally incapacitated for the purposes of a guardianship proceeding. Belcher v. Johnson, 834 So. 2d 422 (Fla. 2nd DCA 2003).

Moreover, the competency of an individual in a guardianship must be considered for the purposes of testifying. This is because the court has found that even a person who has been declared insane can be found competent to testify. Fla. Power & Light Co. v. Robinson, 68 So.2d 406, 413 (Fla.1953).

Thus, individuals in a guardianship that have been declared legally incapacitated for the purposes of a guardianship may still be found competent enough to offer testimony during a deposition.

Conclusion:

Depositions are a foundational aspect of the discovery process in a case. Although depositions can be given by any person involved in the case, the court has often found that certain types of individuals are disqualified from offering such testimony.

Some people might assume that individuals in a guardianship would automatically be barred from offering depositions since the court might have previously found them to be legally incompetent. However, it is important to note that regardless of an guardianship status, the court must still consider the competency of a potential witness regarding such individual’s ability to offer testimony.

Our attorneys practice in the field of Guardianship and are eager to help you understand the ways in which your ward’s competency might impact their ability to offer certain types of testimony if ever involved in a case.

A healthcare surrogate designation is a legal document that establishes who you, the principal, would like to appoint as your “surrogate” if incapacity – when physical or mental limitations prevent you from managing your own affairs – were to occur.

Here are a few things to consider before executing a healthcare surrogate designation.

What are the duties of your healthcare surrogate?

The duties include a variety of roles, some of which may include:

• Consulting physicians and healthcare providers to establish proper medical treatment or end of life treatment;
• Provide informed consent during needed medical intervention;
• Apply for public healthcare benefits on your behalf; and
• Manage admittance to healthcare facilities, like nursing homes, outpatient centers, and more.

What is the difference between a power of attorney and a healthcare surrogate?

Although similar in certain regards, a power of attorney and healthcare surrogate differ in important ways.

A durable power of attorney is a legal document that grants an individual the authority to make financial decisions on your behalf.

On the other hand, a healthcare surrogate would only have the ability to make decisions on behalf of an individual for medical purposes, which may involve care and treatment.

Can I revoke a healthcare surrogate designation?

You may be able to remove a healthcare surrogate if you have proper decision-making capacity. 

Florida statutes, for example, suggest that the amendment or revocation of the designation can be verbal or in writing. It is not clear, however, what extent of capacity is needed to remove the surrogate.

Depending on each individual situation, the Court may need to determine if the grantor’s level of capacity is sufficient to proceed with the revocation.

If the principal does lack capacity, however, an interested person – which could include family members, the healthcare facility, or the primary physician – may still seek to review or remove the surrogate if:

1. The surrogate’s decision is not in accord with the patient’s known desires or the statutes;
2. The designation is ambiguous or the patient has changed his or her mind after execution of the designation;
3. The surrogate was improperly designated or appointed, or the designation of the surrogate is no longer effective or has been revoked;
4. The surrogate has failed to discharge duties, or incapacity or illness renders the surrogate or proxy incapable of discharging duties;
5. The surrogate has abused his or her powers; or
6. The patient has sufficient capacity to make his or her own health care decisions.

Who can I choose to be a healthcare surrogate?

Any competent individual who is at least 18 years old can be selected. You may also consider selecting a second person as an alternate, in case your first choice is unavailable, unwilling, or unable to make decisions on your behalf.

How to designate a healthcare surrogate?

Once you’ve determined who you’d like to appoint as your healthcare surrogate, you should consider if there are any specific stipulations you’d to be followed or upheld regarding your medical care preferences.

Since every state has laws that govern health care surrogacy, it is important that you consult qualified attorneys like those at Mendez and Mendez Law. Doing so will ensure that your designation is drafted in an effective and valid manner, so that issues are minimized or avoided when the power is invoked.

In Florida, for example, the document establishing the authority would need to be signed by two witnesses, one of which cannot be the surrogate.

Conclusion:

It is very important that you incorporate future health care considerations into your estate planning. Doing so ensures that you appoint individuals you trust to make medical decisions on your behalf in the future if incapacity were to occur.

Our team of estate-planning experts at Mendez and Mendez Law are eager to work with you and establish a plan that best serves your preferences and needs.

A will is a document that establishes how you would like your assets to be distributed after you pass away. It also provides you with the opportunity to name an individual as a personal representative or executor to carry out desired distributions and ensure that any outstanding financial liabilities are resolved.

To be valid, a will needs to be properly executed with the proper signing formalities for admission to probate court. In court, the judge will determine whether the will is legal and enforceable before any distributions are facilitated.

Here are a few important considerations to make as you begin to plan your will.

1. You should consider who you’d like your beneficiaries to be.

A beneficiary is anyone you name in your estate plan to benefit, in some way, from your estate. You may decide to explicitly name these individuals to benefit from a specific part of your estate plan like life insurance policies, retirement plans,  investment accounts, or savings accounts.

Deciding who to name as a beneficiary is an extremely personal and important decision to make. During probate, a short-term account will be established for your estate. This temporary account will act as an operating account to receive any income and pay out any expenses on behalf of the estate. Additionally, it will make distributions to beneficiaries of the remaining account balance once all administrative expenses have been paid. 

2. Dying without a will triggers intestacy laws. 

Passing away without a will or estate plan is legally considered “dying intestate.” Any assets owned by yourself and without a beneficiary designation would be distributed and managed according to your state’s intestacy laws through a probate proceeding. 

In Florida, for example, a surviving spouse may or may not be entitled to the entire intestate estate if there are surviving children of the decedent. This means that your spouse may only receive a fraction of your estate, which may not be what you hope to occur. 

To avoid having important decisions like these made without your input, it is vital to create a will that honors the decisions you would like to be made after you pass away or lack the capacity to manage your affairs.  

3. A will minimizes the stress your family faces after you pass away. 

Without a will in place, your family members would be faced with making important decisions regarding your assets and interests without your input. This is especially impactful if you have children from prior marriages, charities you wished to benefit, or who you wanted to be your personal representative of your estate.  

To avoid this, meet with estate attorneys every few years to update your will, so that it reflects significant life changes and financial responsibilities.

Conclusion: 

Estate planning varies from person to person. Regardless, including a will is a foundational component of a solid estate plan.

Our attorneys at Mendez and Mendez Law are eager to meet with you and help you draft a will that protects you and your family’s assets.

Specifically, a power of attorney (POA) is a legal document that grants an individual the authority to make decisions on your behalf if you were to ever become incapacitated. The agent is the party that receives power and will have the legal right to make decisions on your behalf for financial purposes.

Here are a few things you should consider before executing a POA.

Who should I appoint?

Because the role of an agent involves managing your financial affairs, you should definitely appoint someone you trust to act wisely in your best interests. For many, granting power of attorney to a spouse, sibling, adult child, or close friend, thus, makes most sense.

Sometimes, more than one person may be named to act as agent. However, doing so may cause the possibility for conflict if these individuals do not agree or are not all available to act when needed.

What authority would the POA grant?

A POA can be limited or general.

With a limited POA, the agent would be given the authority to conduct a specific act. This may include, for example, granting the agent the authority to sell an individual’s home, car, or other assets. It may also include specific authority to access one’s bank accounts.

A general POA, on the other hand, is more in-depth and provides the agent with various rights that you have yourself. This typically includes the authority to perform any legal act on behalf of the principal. Those specific tasks, however, must still be included in the legal document even if the intended power being granted is more generalized.

When would I need one?

Although most powers of attorney take effect upon execution, it is often assumed that the role of agent will not be used unless the principal – or person delegating power – becomes incapacitated. Phrasing in the legal document, however, can establish that such role only becomes effective unless such incapacity occurs.

For most, a POA is triggered when someone is elderly or if an individual has a serious, long-term health crisis.

But incapacity may not be the only reason someone might need a POA. Often, individuals in the military or people who work abroad will establish a POA to manage their affairs in the United States while they are overseas.

This is why it is important to clearly establish what conditions – whether or not related to incapacity – would trigger the POA-granting authority.

How to get a POA?

First, you should decide who you’d like to manage your affairs if you were unable to do so for yourself. Then decide when you’d like the POA to be established, whether it is upon execution of the legal document or upon incapacity, for example.

Since every state has laws that govern powers of attorney, it is important that you consult qualified attorneys like those at Mendez and Mendez Law. Doing so will ensure that your POA is drafted in an effective and valid manner, so that issues are avoided or minimized when the power is invoked.

In Florida, for example, a power of attorney must be signed by the principal and two witnesses, and must be notarized.

You should also keep in mind that for a POA to be legally binding, the grantor must have sufficient mental capacity when the document is executed. This suggests that the grantor must have a clear understanding of the document and its implications – including to whom the power of attorney is being granted and what property may be affected as a result. 

Is a will a substitute for a POA?

No. A will is a document that establishes how you would like your assets to be distributed after you pass away. A POA, on the other hand, impacts decisions being made while you are alive. A POA ceases to exist or have validity after you pass away.

Conclusion:

It is vital to consider establishing a POA for yourself, so that a trusted individual can make legal or financial decisions on your behalf if incapacity were to occur.  

Executing a POA, however, should be done with proper legal counsel to ensure that the authority is properly invoked by your agent when needed.

Our team of expert attorneys at Mendez and Mendez Law is eager to discuss your situation and work with you to best serve your legal needs.

Because of this, creating an estate plan is especially important. Without a plan in place, your family and heirs may be subject to long courtroom battles, unnecessary estate tax expenses and lost value from your assets.

Since a business can be one of the most important assets in one’s estate, it will likely be at stake after you pass away. This is why it is especially important to create an estate plan as a business owner.

Doing so with expert estate planning attorneys, like those at Mendez and Mendez Law, will enable you to decide what will happen to your business after you die or are no longer able to manage it.

Here are a few reasons why the future state of your business would be strengthened by creating an estate plan.

1. You decide whose hands the business ends up in.

Creating an estate plan for your business ensures that you decide who receives certain assets of your company and who will manage operations once you are unable to do so. This is important because if you were to pass away intestate, or without a will, then state law may dictate the fate of your business.

Typically, most states divide assets between surviving spouses and children. This can be problematic for the success of your business, however.

You may, for example, realize that leaving a business stake or ownership to certain family members may not necessarily be in the best interest of your enterprise. This is often the case if a stake in the business or its direction may cause conflict between your family and business partners. Additionally, your family members may not be in the best position to manage a business in the first place. 

Instead, you may want a key employee to spearhead operations or have ownership. Estate plans are, thus, crucial to convey preferences like these, so that your business is owned and operated by the individuals you’d prefer after you pass.

2. You will be better equipped to divide ownership interests.

For those who have a family-owned business, establishing future family succession is especially important. To determine succession most effectively, you must consider who among your family is most interested in operating the business.

Children, grandchildren, or other relatives may be interested in taking over part, or all, of the business once you are ready to step down. Thus, determining an equitable distribution of the business among interested family members should be a top priority for family business owners.

To do so, you may consider obtaining an independent appraisal or valuation of your business. Such valuations reflect the current economic value of a business.

This insight will help you divide ownership interests and ensure that no one individual gets less than their fair share according to the assessment.

3. You will understand potential tax liabilities that may apply to your estate and heirs.

An appraisal of your business will also help you better understand tax liabilities that may apply to asset transfers after you pass away. Keeping tax liabilities in mind when considering the totality of your estate is helpful because it will enable you to understand which portion of your business assets would be received by your family once taxes are deducted.

Estate and inheritance taxes may be charged to the estate and heirs when assets are passed to beneficiaries. With estate taxes, the deceased is liable for the taxation. An inheritance tax, instead, is imposed onto the living heir for receiving property from a deceased individual.

Keep in mind, however, that once you pass and beneficiaries receive the business asset, they may decide to operate the business in a way contrary to what you might have wanted. The person who inherits the assets or is in charge of the estate, for example, can even decide to sell the business altogether.

Conclusion:

Although planning an estate may be a complicated process, it is especially important for business owners. Without an estate plan in place, the fate of a business is uncertain.

Reach out to our attorneys at Mendez and Mendez Law today to discuss your situation and the ways in which our team can help you as a business owner with your estate planning needs.

Many people understand that estate planning involves determining the value of your assets and deciding how such assets should be managed in the event of death or incapacity. But it is especially important to ensure that you identify which individuals you would like to benefit from money or property that you decide to pass down.

A beneficiary is anyone you name in your estate plan to benefit, in some way, from your estate. You may decide to explicitly name these individuals to benefit from a specific part of your estate plan like life insurance policies, retirement plans, social security disability, or savings accounts.

Regardless of whether you decide to name beneficiaries in your policies or plans, you are still able to name such individuals in your Last Will and Testament, which is a document that establishes how you would like your assets to be distributed after you pass away.

Aside from receiving a portion of the monetary value, named beneficiaries may be conferred certain rights. These individuals may have the right to be informed about basic information regarding the estate. This information often revolves around accounting facts and updates.

Additionally, named beneficiaries may be entitled to know about dates regarding distributions or delays. They may also be updated if the estate is involved in any litigation or legal proceedings.

Failing to name beneficiaries in your will may subject your assets to be distributed and managed according to your state’s intestacy laws through a probate proceeding.

It is important to note, however, that there are two different types of beneficiaries that can be named in a will or trust.

A primary beneficiary is an individual or organization that would be first in line to receive any assets enumerated in the will or trust. You can name multiple individuals as primary beneficiaries, while also designating percentages toward each.

If a primary beneficiary was legally incompetent, unable to be located, uninterested in receiving the inheritance or deceased, then a contingent beneficiary may receive the allocated benefit. A contingent beneficiary, thus, is an individual or organization that would be second or third in line to receive the inheritance.

Regardless of whether beneficiaries have been named, however, a court-appointed guardian ad litem may be appointed to manage the inheritance if such beneficiaries are minor children – until the child reaches an age of legal capacity.

Who should be named a beneficiary of your estate?

Deciding whom to name as a beneficiary of your estate is an extremely personal and important decision you’ll have to make. Keep in mind, however, that your decision will definitely depend on a variety of factors – including which assets you plan to distribute, any financial dependents you have, among other things.

Although most people tend to name their spouse and children as beneficiaries, you should know that you can technically choose whoever you’d like to benefit from your estate.

If you were to pass away while your children were still minors, then you may want to do more than select them as primary or contingent beneficiaries. Specifically, you may want to create a trust.

With a trust, assets would still benefit your children but be managed by a trustee. This would allow the trust to benefit your children without a guardianship needing to be established.

Trustees, for example, may use assets from the trust to cover any of your children’s expenses related to health, education, maintenance, and support (H.E.M.S.).

Further, the trustee would manage the trust until your children reach an age of adulthood or comply with any stipulation you might have included in the arrangement.

How are beneficiaries paid upon distribution from your estate?

During probate, a short-term account will be established for your estate. This temporary account will act as an operating account and receive any income and pay out any expenses on behalf of the estate. Additionally, it will make distributions to beneficiaries of the remaining account balance once all administrative expenses have been paid.

Conclusion:

Estate planning often varies from individual to individual. It may involve drafting a will that will be enforced after you pass away or upon establishing a trust that becomes effective once created. Common to all estate planning, however, involves appointing beneficiaries who will be entitled to receive distributions from your estate assets after you pass away.

It is important that you consult proper legal counsel and experts about your estate planning needs. Our experienced estate attorneys at Mendez and Mendez Law are eager to discuss your situation and work with you to best serve your needs. Reach out to meet with us today.

The need to plan your finances and estate is especially magnified if you have minor children. Without a proper plan in place, you would leave the courts with the responsibility of determining the welfare of your children.

But knowing that estate planning is important will only take you so far.

Although most people tend to draw up either a will or trust to facilitate their estate planning needs, the specific estate-planning tool relied upon tends to vary based on personal preferences.

This article explains the difference between a will and a trust, so that you can decide what might work best for you, your needs, and that of your heirs.

What is a will?

A will is a document that establishes how you would like your assets to be distributed after you pass away. It also provides you with the opportunity to name an individual as your personal representative or executor to carry out those desired distributions and ensure that any outstanding financial liabilities are accounted for.

To be implemented, a will would need to be properly executed with the proper signing formalities for admission to probate court. In court, the judge will determine whether the will is legal and valid before any distributions are facilitated.

Without a will, however, probate proceedings can be lengthy and complicated. This would occur if you were to die without a will, which legally, is considered “dying intestate.”

If you were to pass away without an estate plan, any assets owned by yourself and without a beneficiary designation would be distributed and managed according to your state’s intestacy laws through a probate proceeding.

In Florida, for example, a surviving spouse may or may not be entitled to the entire intestate estate if there are surviving children of the decedent. This means that your spouse may only receive a fraction of your estate, which may not be what you hope to occur.

To avoid having such important decisions made without your input, it is vital to create a will that honors the decisions you would like to be made after you pass away or lack the capacity to manage your affairs.

What is a trust?

A trust is a legal entity that protects the assets in your estate. Specifically, the legal arrangement ensures that a transfer of assets occurs from the owner, known as a grantor or settlor, to a trustee. The trustee is responsible for the management and disbursement of assets to the designated beneficiaries in accordance with the terms laid out in the trust document.

Most relevant to estate planning purposes, irrevocable trusts become effective once assets are transferred to them. In this way, the trust cannot be reversed. As a result, once assets are put into the trust, the trust essentially becomes the legal owner of the assets. This is an important distinction from wills where distribution and implementation would occur after your death.

Trusts can also be used in conjunction with wills. For example, an individual may indicate in a will for a testamentary trust to be created after death.

Regardless, a trust is a great option for those who are looking to manage their financial affairs in private. This is because a trust can help establish the management and distribution of assets without involving probate court.

For many people, however, the main reason for creating a trust is because of the associated tax advantages. Irrevocable trusts, for example, allow certain amounts to be contributed annually without being subject to gift taxes. These assets also tend to be protected from estate taxes.

Conclusion:

It is vital that you create an estate plan sooner rather than later in life. Oftentimes, estate planning involves drafting a will that would be enforced after you pass or establishing a trust that becomes effective upon creation. Because there are advantages and disadvantages to both a will and a trust, it is important that you consult proper legal counsel and experts about your estate planning needs.

Our experienced estate attorneys at Mendez and Mendez Law are eager to discuss your situation and work with you to best serve your estate-planning needs.

A trust is a relationship in which one party, known as the settlor, gives another party, referred to as the trustee, the right to hold title to property or assets for the benefit of a third party, the beneficiary.

Through a trust, legal protection is offered to the settlor’s assets to ensure that such assets are distributed according to the settlor’s wishes. Additionally, since trusts hold property, assets tend to be better protected than they would be in an individual’s name.

Trusts may also avoid certain estate taxes and certain assets may not have to pass through probate court to be transferred and validated.

Regardless, it is important to discuss these options with expert estate attorneys – like ours at Mendez and Mendez Law – so that you make the best decision for your estate, heirs, and assets.

Different types of trusts:

For those interested in trusts, there are a few things to consider. First, although there are a variety of types of trusts, each fall into one or more of the following categories

1. Living or Testamentary

A living trust is established while the settlor is alive. Thus, the assets outlined in the document will be used by the settlor throughout their lifetime. Upon death, these assets will be overseen by a trustee who will ensure that the assets are effectively transferred to the named beneficiaries.

A testamentary trust, on the other hand, describes how the assets of an individual will be assigned after death.

2. Revocable or Irrevocable

Living trusts can be either revocable or irrevocable. A revocable trust is one in which the settlor is allowed to revoke or change the terms of the trust at any point while alive.

Irrevocable trusts, however, prevent changes from being made to the trust once the document has been executed. This is because with irrevocable trusts, the assets no longer belong to the settlor and instead belong to the beneficiary. As a result, changes typically cannot be made.

Although revocable trusts allow for more flexibility and adaptability, irrevocable trusts may be more cost effective. This is because these trusts contain assets that have been permanently removed from the trustor’s possession and, as a result, allow for estate taxes to be minimized or avoided altogether.

Why trusts may benefit various types of individuals:

Many people assume that trusts are only beneficial to high net-worth individuals and families since trusts are costly to prepare and maintain. Contrary to this assumption, almost everyone can benefit from the creation of a trust for a variety of reasons.

1. Establishing a trust can be especially beneficial to individuals interested in ensuring the care of a physically or mentally disabled dependent.
2. Trusts offer a level of privacy that wills may not be able to provide. This is because for a will to be valid, it must often go through probate court proceedings. Depending on the jurisdiction, these proceedings and documents may be publicly available.  For those who especially value privacy when it comes to estate planning, trusts are typically not of public record.
3. The tax obligations required by a trust are often lower than wills or other estate alternatives.
4. Creating a trust may help an individual qualify for government benefits while still preserving a portion of their wealth.

Conclusion:

A trust is a complex legal and financial entity that should be established with the help of an expert attorney. Reach out to Mendez and Mendez Law today to discuss your financial goals and the ways in which a trust may or may not be the best option for you.

Your estate is likely made up of the items and property you interact with daily: your car, home, investment properties, checking and savings accounts, personal possessions, furniture, and artwork, among other things.

Regardless of its size, your estate will continue to exist after you die. Thus, it is important that you begin to consider who you would like to benefit, the manner in which items would be distributed, and the timing of such distribution.

Estate planning involves making those considerations now, so that facilitating your plan – in the event of death or incapacity – is less burdensome for you and your family. Although many people tend to initiate these plans when older, these considerations should begin today.

Why estate planning is important:

Estate planning should be done by everyone. Contrary to popular belief, it is not just for the wealthy. In fact, individuals with modest assets and their heirs will arguably benefit the most from ensuring that a solid estate plan is put in place sooner rather than later. This is because poor estate planning could impose a variety of problems for your heirs including long courtroom battles, unnecessary estate tax expenses, and lost value from your assets.

Additionally, preparing an estate plan is especially important to ensure that your assets are managed and distributed the way you would like in the event of death or incapacity.

If you were to pass away without an estate plan, any assets owned by yourself and without a beneficiary designation would be distributed and managed according to your state’s intestacy laws through a probate proceeding.

In Florida, for example, a surviving spouse may or may not be entitled to the entire intestate estate if there are surviving children of the decedent. This means that your spouse may only receive a fraction of your estate, which may not be what you desired.

Similarly, without an estate plan to reference, the Court would be forced to navigate guardianship law to appoint a guardian to manage your health and finances. This individual may be chosen by you through an estate plan executed prior to any court determining your incapacity.

To avoid having such important decisions made without your input, it is vital to create a plan that honors the decisions you would like to be made after you pass away or lack capacity to manage your affairs.

How to get started:

The first and arguably most important step you can take to create an estate plan is to create a will. A will is a document that establishes how you would like your assets to be distributed after you pass away, and who you would like to name as your personal representative or executor to carry out those desired distributions. To be implemented, the document would need to be properly executed with the proper signing formalities for admission to probate court.

Since the probate process is lengthy and complex, you may consider establishing a trust to potentially avoid probate. A trust can help establish the terms of the management and distributions of assets without involving probate court. However, it is important to keep in mind that creating a trust may require greater and more complex legal guidance than a will.  

Conclusion:

It is important to establish an estate plan sooner rather than later in life. Doing so will ensure that your assets and possessions are dealt with the way you would most prefer. Additionally, creating a solid plan that honors your wishes will grant your heirs peace of mind if you are ever unable to make decisions for yourself.

Because there are a variety of options available to plan your estate, you should consult legal counsel and other appropriate experts about your estate planning needs. Reach out to our qualified estate attorneys at Mendez and Mendez Law to discuss your situation and the ways in which we can best serve your needs.

These changes came into effect on October 1, 2020 and updated the section in Fla. Stat. 733.617 of Florida’s Probate Code and Fla. Stat. 736.0708 of Florida’s Trust Code.

Both sections now require the testator of a will or settlor of a trust to submit a written statement conveying that they have elected their attorney, an attorney employed in the same firm as their attorney, or a person related to their attorney, as the personal representative or trustee in their respective will or trust.

How these changes impact the execution of wills:

There are two scenarios by which attorneys or individuals related to them, pursuant to Fla. Stat. 733.617(8), can serve as the personal representative of a testator.

1. The attorney, or nominated person related to attorney, as personal representative is related to the testator.
2. The attorney, or nominated person related to attorney, conveys the following disclosures to the testator before the will is executed:
   • Subject to certain statutory limitations, most family members, regardless of their residence, and any other persons who are residents of Florida, including friends and corporate fiduciaries, are eligible to serve as a personal representative.
   • Any person, including an attorney, who serves as a personal representative is entitled to receive reasonable compensation for serving as a personal representative. 
   • Compensation payable to the personal representative is in addition to any attorney fees payable to the attorney or the attorney’s firm for legal services rendered to the personal representative.

If the testator does in fact decide to elect their attorney, an attorney employed in the same law firm as their attorney, or person related to their attorney, then the testator must submit a written statement to the Court acknowledging that the relevant disclosures explained above were shared before the will was executed.

This written statement must be separate from the will but may be annexed to the will itself. It must be in the following form:

I, __ (Name) __, declare that:

I have designated my attorney, an attorney employed in the same law firm as my attorney, or a person related to my attorney as a nominated personal representative in my will or codicil dated __ (Insert Date) __.

Before executing the will or codicil, I was informed that:

1. Subject to certain statutory limitations, most family members, regardless of their residence, and any other persons who are residents of Florida, including friends and corporate fiduciaries, are eligible to serve as a personal representative.
2. Any person, including an attorney, who serves as a personal representative is entitled to receive reasonable compensation for serving as a personal representative.
3. Compensation payable to the personal representative is in addition to any attorney fees payable to the attorney or the attorney’s firm for legal services rendered to the personal representative.

__ (Signature) __

__ (Testator) __

__ (Insert Date) __

How these changes impact the execution of trusts:

The statute changes made to the Fla. Stat. 736.0708 of Florida’s Trust Code are nearly identical in terms of the requirements imposed upon the testator of a will. Similarly, there are two scenarios by which attorneys or individuals related to them can serve as a trustee.

1. The attorney, or nominated person related to the attorney, appointed as trustee is related to the settlor.
2. The attorney, or nominated person related to the attorney, appointed as trustee conveys the following disclosures to the settlor before the trust is executed:
   • Unless specifically disqualified by the terms of the trust instrument, any person, regardless of state of residence and including family members, friends, and corporate fiduciaries, is eligible to serve as a trustee.
   • Any person, including an attorney, who serves as a trustee is entitled to receive reasonable compensation for serving as trustee.
   • Compensation payable to the trustee is in addition to any attorney fees payable to the attorney or the attorney’s firm for legal services rendered to the trustee.

__ (Signature) __

__ (Testator) __

__ (Insert date) __

If the settlor does in fact decide to elect their attorney, an attorney employed at the same law firm as their attorney, or a person related to my attorney as a trustee, then the settlor must submit a written statement to the Court acknowledging that the relevant disclosures shared above were, in fact, disclosed before the trust was executed.

This written statement must be separate from the trust but may be annexed to the trust itself. It must be in the following form:

I, __ (Name) __, declare that:

I have designated my attorney, an attorney employed in the same law firm as my attorney, or a person related to my attorney as a trustee in my trust instrument dated __ (Insert Date) __.

Before executing the trust, I was informed that:

1. Unless specifically disqualified by the terms of the trust instrument, any person, regardless of state of residence and including family members, friends, and corporate fiduciaries, is eligible to serve as a trustee.
2. Any person, including an attorney, who serves as a trustee is entitled to receive reasonable compensation for serving as trustee.
3. Compensation payable to the trustee is in addition to any attorney fees payable to the attorney or the attorney’s firm for legal services rendered to the trustee.

__ (Signature) __

__ (Testator) __

__ (Insert Date) __

Conclusion:

Individuals executing a will or trust in Florida are now able to elect their attorneys as a personal representative or trustee, if such attorneys convey a few disclosures regarding the arrangement. To effectively appoint an attorney as one’s fiduciary, testators or settlors are required to sign a written statement acknowledging that such disclosures were made before the will or trust was signed.

Reach out to Mendez & Mendez Law to speak with experienced attorneys about your estate situation. Our attorneys are eager to review these disclosures with you and answer your questions as you make important decisions impacting your estate planning.