In Florida, the estate planning process consists of the creation of legal documents that direct what happens to your assets and property after your death, as well as who cares for you in the event of your disability or incapacity. Proper estate planning also allows for minimizing the tax consequences of transferring asset under state and federal gift and estate tax laws, as well as caring for loved ones in the event of your untimely passing. Moreover, a comprehensive estate plan can help your loved ones avoid the burden of probate and further avoid costly and lengthy disputes over your estate. Don’t leave important decisions regarding who receives your assets, who will be guardian of your children or who will manage your medical or financial affairs up to the State of Florida. Take control of your family’s future with a comprehensive estate plan today.
What is your “Estate”?
Your estate consists of everything you own, and more. Your estate generally consists of, but is not limited to, the following: liquid assets like cash, money in bank accounts, life insurance policies, annuities, individual retirement accounts, 401(k)s, tangible personal property, vehicles, jewelry, heirlooms, your family, your values and even your legacy.
What are Some Goals of Estate Planning?
Some important goals to consider in preparing a comprehensive estate plan are:
– Providing care for yourself
– Providing care for your surviving spouse, significant other, companion or partner
– Providing care for your minor children
– Providing care for your adult children
– Passing on your legacy
– Saving money in the long run
– Maintaining power and control over assets you have worked hard for
What are the Different Kinds of Estate Planning Documents?
There are several different types of estate planning documents in Florida. Deciding which documents are an appropriate part of your comprehensive estate plan is a complex legal determination made based upon several variables including your family dynamics, the extent and nature of your assets, who you would like to leave the assets to, and so on. Below is a list of common estate planning documents:
Last Will and Testament: A Will directs who is to receive your assets upon your passing and generally disposes of assets through the probate process. Your Will is “proven up” in probate Court and a personal representative is charged with carrying out your wishes in the court-supervised probate process. You may change your Will at any time by executing a codicil to the Will or revoking your prior Will by executing a new Will. Your Will may not be changed by marking through words or sentences, or making handwritten changes on the original document. Changes to your Will must be made with the same formalities that were required when you initially made your Will in order to be effective under Florida law.
Revocable Living Trust: A trust is a document that allows you to transfer ownership of most of your assets from yourself to the trust, and name you (or someone you choose) as the trustee to be in control of the assets. This is an agreement you make during your lifetime for the benefit of yourself, and for the benefit of your spouse or other intended beneficiaries after your death. If the creator (the Grantor/Settlor) of this agreement sets the trust up during his or her lifetime, it is called a “Living Trust.” If the creator retains the right to change, amend or dissolve the trust during his or her lifetime, it is a “Revocable Living Trust.”
A Revocable Living Trust, if properly funded, will help your family and loved ones avoid probate upon your death. A revocable living trust allows for a seamless transition during your lifetime, through incapacity, and after death. You can select who you would like to be in charge of your trust estate at incapacity, and who you would like to be in charge of your trust estate at death. You are able to control how your beneficiaries inherit their interests and, if properly drafted, you can prevent creditors of your beneficiaries from laying claim to your family legacy during your lifetime. Under most circumstances, your Revocable Living Trust can be modified, revoked or amended, provided you have the requisite capacity.
What are the Advantages of a Revocable Living Trust?
1) AVOIDS PROBATE – A properly funded trust avoids probate, which could represent substantial savings in both time and money for your beneficiaries.
2) AVOIDS COSTLY DELAY – A properly funded trust can be administered in a much more efficient and timely manner than the court-supervised probate process.
3) PROVIDES PRIVACY – Florida law requires that your Will be deposited with the Clerk of Courts at the time of an individual’s death. When your Will is deposited, it becomes part of public records. Anyone can see a list of your assets, liabilities, and who will receive your property. Revocable Living Trusts are not required to be deposited with the Clerk of Courts, so individuals cannot determine the extent of your assets, liabilities or intended beneficiaries. Therefore, property held by a revocable living trust is private and the identities of trust beneficiaries are also kept private.
4) AVOIDS THE NEED FOR GUARDIANSHIP – Another major advantage of a revocable living trust is that if the Grantor/Settlor becomes incapacitated or disabled and can no longer handle his or her own affairs, a “Successor” Trustee is already named in the trust agreement to manage the trust assets for the benefit of the Grantor/Settlor. A Guardianship or Conservatorship is not necessary for assets that are held in the trust.
The term Advanced Directive generally refers to your health care documents, such as the Designation of Health Care Surrogate and Living Will Declaration.
Living Will Declaration: A Living Will Declaration is an advanced directive in which you make your wishes known with respect to the withholding or withdrawal of certain life-prolonging procedures under very limited, specific circumstances. Your Living Will Declaration will not be given effect as long as you can communicate your wishes to your physician and other health care providers at the time of your treatment. If you lose the ability to communicate your wishes, your Living Will Declaration still will not be given effect unless your attending physician and a second consulting physician both agree that your condition is such that it would be appropriate to invoke your Living Will as the final expression of your wishes. Your Living Will Declaration may be modified or revoked at any time, as long as you have capacity.
NOTE: We recommend providing copies of your Designation of Heath Care Surrogate and Living Will Declaration to the agent under your health care surrogate, your general physician, any specialists you see, and to the hospital or hospitals where you are likely to go for treatment. We also recommend discussing these documents with your physician at your next scheduled appointment to confirm that he or she is willing to honor your wishes regarding the cessation or withholding of life prolonging procedures in appropriate circumstances. We further recommend that you ask your physician to make an entry in your medical records confirming the discussion of your wishes as expressed in your Living Will Declaration and confirming that your physician has copies of both documents in your file.
Durable Power of Attorney: A Durable Power of Attorney is an important legal document by which you authorize another individual to step into your shoes and transact your personal and business financial affairs during your lifetime, without court supervision or approval. The person you appoint as your attorney-in-fact or agent should be someone you trust completely. Although your attorney-in-fact will have a fiduciary obligation to act in your best interest while serving as your power of attorney, that doesn’t always happen. Your attorney-in-fact will have the power to withdraw money from your bank accounts and brokerage accounts, mortgage and transfer your real and personal property, and take other actions which could be devastating financially. We call this to your attention because it is imperative that you take whatever precautions necessary under the circumstances to protect your interests.
The powers granted to your attorney-in-fact will be effective the moment you sign your durable power of attorney and will continue to exist for your entire lifetime, even if you become incapacitated, unless you revoke or terminate the durable power of attorney in a written instrument executed with the same formalities as the original instrument. You will have the right to modify, revoke or terminate your durable power of attorney at any time, provided you have the requisite legal capacity. The power granted by your durable power of attorney terminates automatically upon your death.
In late 2011, the Florida Legislature enacted a new power of attorney statute which effectuated many substantial changes in the law. These changes severely impact existing documents that were executed prior to such time. Even if your document itself is valid, there may be some provisions in the document that are not, or that need to be added to assist your estate planning goals.
If you would like to discuss having a Durable Power of Attorney prepared or make changes or update an existing Durable Power of Attorney, to schedule a consultation with one of our experienced estate planning attorneys.
Designation of Pre-Need Guardian: A Designation of Pre-Need Guardian is prepared and signed while you have capacity to provide evidence to the Court of who you want to be your guardian of your property and person, should you ever need one. Although this document is not legally binding on the Court, it is used as an evidentiary tool for the Court in appointing an appropriate Guardian. Your Designation of Pre-Need Guardian may be modified or revoked at any time, provided you have the requisite capacity.
If you would like to discuss having a Designation of Pre-Need Guardian prepared or make changes to an existing Designation of Pre-Need Guardian, to schedule a consultation with one of our experienced estate planning attorneys.
Designation of Health Care Surrogate: A Designation of Health Care Surrogate is a document in which you select an individual to make health care decisions for you in the event you become unable to make those decisions for yourself (or under the new statute discussed below, if you choose for the document to become effective immediately), and authorizes your physician and other health care providers to disclose sufficient information about your condition and treatment to your surrogate in order for them to make a meaningful and informed decision on your behalf. Your Designation of Health Care Surrogate may be modified or revoked at any time, provided you have the requisite capacity.
Chapter 765 of the Florida Statutes was amended, on October 1, 2015. One of the most radical changes, indeed perhaps the only one, under the 2015 amendment to Chapter 765 is the ability to make a Designation of Health Care Surrogate effective immediately upon signing, rather than empowering the surrogate only when the patient’s physician(s) have determined that he or she is no longer capable of making those decisions.
If you would like to discuss having a Designation of Health Care Surrogate prepared or make changes to an existing Designation of Health Care Surrogate, to schedule a consultation with one of our experienced estate planning attorneys.
Can Estate Planning Protect Minor Children?
If you have minor children, you should not wait to establish a proper estate plan. It is everyone’s hope to be around long enough to raise your child or children into adulthood, but sometimes life has other plans. The only way to ensure the security of your family is with a comprehensive estate plan developed with the assistance of an experienced estate planning attorney.
Who Will Care for My Child or Children?
First, you should indicate who you would prefer to raise your child or children in the event of your passing. In Florida, you can nominate a guardian of minors in your Last Will & Testament. If there are two parents, each parent should have his or her own individual Will and name the other parent as guardian. Each parent should also nominate a back-up or successor guardian, in the event the other parent is unable to serve.
In selecting a guardian, you should consider the individual’s values and temperament, whether they have other children and their location, just to name a few factors. If your children are school-aged, you may wish for the guardian to reside in your community so the children have some feeling of continuity and stability upon your passing. We often hear clients consider naming grandparents as guardians of minors. However, if your children are younger, you should consider whether grandparents will be able to properly care for them given physical limitations or even mobility issues. This is a major decision that should not be taken lightly.
If you pass away, ultimately the Court will decide who is best able to raise your child or children. The Court will generally honor your wishes as indicated in a Last Will & Testament, unless the individual you have selected is unfit or there are other extenuating circumstances.
How Can I Protect Assets for My Minor Children?
In Florida, the most common estate planning tool used to protect assets for availability to minor children is a Revocable Living Trust. Although young families may not have extensive assets at the time of establishing an estate plan, funds in bank accounts, life insurance proceeds or a lawsuit settlement being paid to an estate should be designated to flow into a trust for the benefit of your minor child or children. In a Revocable Living Trust, you select a trustee to manage the trust assets and monies for the benefit of your child or children. The trustee can be the same person you nominate as guardian of your minor child or children, or it can be someone different.
You can also dictate the terms of when your child or children are to get distributions from the trust. For instance, the trust can provide that funds may be used to provide for the health, education, maintenance and support of the minor child or children until they reach a certain age. Upon reaching a certain age or other milestone, you can instruct your trustee to distribute a fixed portion of the assets in the trust to the child. For example, you can instruct the trustee to distribute one-third (1/3) of the trust assets to your child at the age of 21 or 25.
Can I Designate my Minor Child as Beneficiary on Assets?
Here at e-Estates and Trusts, we do not recommend that you name minor children as beneficiaries of your assets. If your minor children are named beneficiaries on assets at the time of your death, a guardian of property will become necessary under certain circumstances. A Court will create a guardianship for the minor and also select a guardian to hold they funds or assets they have inherited. Those funds may be released to your child when he or she reaches the age of majority. It should be noted that many legal “adults” lack the maturity to prudently manage a lump sum of money. Thus, we recommend designating your trust as the beneficiary on certain assets to ensure the assets are held in the same trust, controlled by the provisions of your trust and managed by the same trustee for the benefit of your child or children.
If you would like to discuss how to best protect your minor child or children in the event of your incapacity or untimely death, to schedule a consultation with one of our experienced estate planning attorneys. We understand how busy life is with young children, and we are thrilled to offer convenient telephone or video conferences with our experienced attorneys to get you started on your path to a secure future.
How We Operate:
To best serve our clients, we set aside blocks of time to speak with clients via telephone or video conference. If you would like to confer with one of our experienced attorneys, please select one of the options below:
Existing Client Conference – During this call, you will receive an update on your legal matter and can ask any questions you may have. Check-In Calls are scheduled for 15 minutes and are only available for existing clients who have signed an Employment and Fee Agreement with our firm.
Estate Planning Consultation – During this conference, we will discuss your personal and family dynamics, assets, liabilities and overall goals to develop your individualized estate plan. To make the best use of our time during this conference, potential clients submit a completed Estate Planning Questionnaire prior to the scheduled consultation.
Estate Administration Consultation – During this conference, we will assess your case to determine whether we will be able to assist and to begin developing a legal strategy for your matter. In order to make the best use of our time during this call, potential clients submit a completed “Estate Administration Questionnaire” and any Last Will & Testament, Trust Agreement, Separate Writing Regarding Tangible Personal Property, or any other estate planning documentation the decedent had in place through our secure client portal .