Estate Plan Basics
An estate plan involves intimate decisions about what you value. A proper estate plan is not necessarily about dollars and cents, but taking the time to provide for the people and things about whom you care most deeply. A proper estate plan can put your mind at ease. You can relax knowing that a professional has looked at your situation, crafted a custom plan, and ensured that the details have been handled. Good planning protects you and your family and will put your mind at ease.
Do I need an estate plan?
The answer to this question is a YES for everybody. The details of the plan vary depending on the situation, but you should have a basic plan in place to provide guidance and authority for your loved ones to act according to your wishes should you become incapacitated or pass away. A proper estate plan ensures that someone can step in and handle your finances, someone can make medical decisions in the event you cannot make them yourself, someone can care for your minor children, and, finally, that your property passes to your loved ones at your death.
Do I need to update or review my current estate plan?
We recommend you review your estate plan anytime the circumstances in your life change. For example, if you married, divorced, had a child, bought a house, sold a house, or had a significant change in assets, it is a good idea to review your plan. If you have decided to make Florida your permanent residence, then you should review your plan. If you are unsure about what your plan says, you should review it with an attorney to make sure you understand your plan.
Our attorneys will evaluate your situation and make recommendations based on your goals, which may include avoiding probate, minimizing taxes, planning for incapacity, providing for minor children, second marriage considerations, Florida residency issues, etc.
An estate plan almost always includes a will, an advanced health directive (sometimes called a living will), and a durable power of attorney. Depending on your situation and goals, your estate plan may include a revocable living trust, a pre- or post-nuptial agreement, an irrevocable I.R.A. trust, a qualified income trust, or many other tools we can use to achieve your goals. Below is a summary of some of the basic estate planning documents.
A Durable Power-of-Attorney authorizes the person or persons you have named to manage your personal and financial affairs during your lifetime. Although you may authorize a person to exercise the powers at any time, it is critical to have a document in place in the event you become incapacitated so that your financial affairs may be managed efficiently and without the need for court intervention through a guardianship, which is a much more invasive and, ultimately, costly procedure.
Advanced Health Directive.
An Advanced Health Directive authorizes the person or persons you name to make decisions concerning your medical treatment, but only if you are unable to communicate these decisions for yourself. A copy of your signed Advanced Health Directive can be provided to your physician to be kept in your medical record file. The Advanced Health Directive that we prepare also contains provisions indicating whether or not your life is to be prolonged by providing or continuing life-sustaining treatment if certain medical conditions exist, such as in an irreversible coma or persistent vegetative state. This document is critical to have in place so that your desires regarding your health care be followed and nobody has to guess at what you would have wanted.
Last Will and Testament.
Your Will generally controls the distribution of property that you own in your own name at your death. Your Will names the person who will be responsible for managing the probate of your estate as well as the beneficiaries of your property. If you have minor children, you also will nominate a guardian. Your Will generally does not control distribution of property that is subject to a beneficiary designation (i.e., life insurance and I.R.A.s) or property that is jointly owned with another. Remember, having a Will does not avoid probate. Rather, your Will provides direction to the probate court for distribution of your property.
Revocable Living Trust.
A revocable living trust is a legal entity that you create typically naming yourself as Trustee. The purposes for creating this document can vary, but some typical purposes include reducing potential estate taxes, probate avoidance, providing for a surviving spouse while maintaining the assets for separate children (such as in a second marriage situation), or planning for incapacity. There are other good reasons for creating a trust, which depend greatly on a person’s financial and personal circumstances.
Health Care Surrogate for Minors.
In 2015, Florida passed an amendment to its health care surrogate law allowing parents and legal guardians of minor children to appoint other trusted individuals to make health care decisions for their children if the parents or guardians are unavailable to make a decision. This is useful for when people are out-of-town and their children are staying with family, in emergency situations where parents are unavailable, or any other situation where the parents or guardians are unable to make decisions for their children. Obviously, care should be exercised in selecting a child’s health care surrogate.
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