Estate Planning is the process of planning for and arranging the distribution and disposal of an individual’s estate while they are still alive. In other words it allows you to make a plan in advance and name who you want to receive your property after you are gone. Beyond this simplistic function, Estate Planning is also used to avoid confusion over the administration of your probate estate and to maximize the value of the estate by reducing taxes and other expenses. These goals are usually accomplished through the use of a Last Will and Testament, Durable Power of Attorney, Designation of Health Care Surrogate, Living Will, Designation of Pre-Need Guardian, and in some circumstances a Trust.
Frequently Asked Questions
What is a Last Will and Testament?
The Last Will and Testament directs the manner in which your assets are to be divided and distributed, and then appoints a Personal Representative to administer your estate. If you have minor children, your Will also appoints a Guardian and Trustee to care for them and manage the assets you leave to provide for them.
What is a Trust?
A Trust is a fiduciary arrangement that involves three separate entities, the Grantor, or the person who is funding the Trust with assets, the Trustee, or the person who is managing the Trust assets, and the Beneficiaries, or the people that the Trustee is managing the assets for the benefit of. There are many different types of Trusts, but the most common one is a Revocable Living Trust. This Trust is most commonly implemented to avoid the need to institute a probate administration, thus saving your heirs time and money after you are gone. Whether or not you need a Trust depends on your personal financial situation. An Estate Planning attorney can help explain the different options available so that you can create a set of Estate Planning documents that fits your specific needs.
What happens if you die without a Will?
If you die without a Will, the State of Florida has intestate laws that govern how your assets will be divided and in whose care your minor children may be entrusted. This may be totally different from your wishes and can often create confusion and hardship for your loved ones.
What is a Durable Power of Attorney?
A Durable Power of Attorney authorizes a trusted agent (a family member, friend, or professional advisor) to handle your financial, legal, and business affairs, if you become incapacitated during your lifetime. This document will limit the chance of a costly, unwanted, Court-appointed Guardian to take control of your finances and property.
What is a Designation of Health Care Surrogate?
This document appoints a caring family member or trusted friend to make medical decisions, give consent for medical procedures and otherwise help direct your medical care if you are unable to do so for yourself. This reduces the possibility of unwanted Court intervention in your health care directions. This document also waives the very restrictive HIPAA privacy laws which can obstruct or hinder the ability to access and transfer your medical records between health care professionals when time is of the essence.
What is a Living Will?
A Living Will is a documented personal choice whether or not you wish to have extraordinary medical means employed on a long term basis in order to maintain your body when you are unable to communicate. This limits the possibility of confusion and controversy among your family and reduces the possibility of the Court’s involvement during this very tumultuous time for you and your loved ones.
What is a Declaration of Pre-Need Guardian?
A Declaration of Pre-Need Guardian is used in the unlikely event that you become the subject of an involuntary Guardianship proceeding. This document will assure that a Guardian of your choice will be appointed to care for you and your property if a Guardianship is deemed necessary.
Do I need a Will if I have a Trust?
A Trust normally works in conjunction with what is referred to as a Pour-Over Will. The Trust will only distribute property that has been properly titled or funded into the Trust. If any probate property was not properly funded into the Trust then the Pour-Over Will operates to pour that property from your probate estate into your Trust. So even if you have a Trust a will is still necessary to make sure that your Trust is completely effective.
What is a Business Succession Plan and do I need one?
Many people who own and operate their own business desire to have their business continue on after they have retired and relinquished control to family members or other third parties. A Business Succession Plan will allow the passing of key leadership roles within a company such that the business will continue to operate after the owner is no longer in control. This plan will allow this process to be handled smoothly so that business is not interrupted during this potentially tumultuous transitional phase. If this is important to you, we can help you draft these documents alongside your Estate Plan.