Your estate consists of everything you may own and even more. It consists of, but is not limited to the following: money, life insurance, annuities, individual retirement accounts, 401(k)s, personal property, your family, your values, and your legacy.
What are some Goals of Estate Planning?
To care for:
– Yourself
– Your surviving spouse or significant other
– Adult or minor children in your care (who are reliant on your care)
– To pass on your legacy
– To save money in the long term
– To maintain control over property you have worked hard for
Last Will a Testament (A “Will”)
A will disposes of assets held in your individual name without a named beneficiary through the probate process. Probate is the act of proving your Will. Your will may be changed at any time by executing a codicil to the Will or revoked by executing a new Will. Your Will may not be changed by marking through words or sentences or making handwritten changes on the original. Changes to your Will must be made with the same formalities that were required when you made your Will. If you need to make changes to your Will, please call me and I will help you make those changes.
Bank accounts payable on death (POD) to a named beneficiary, brokerage counts transferable on death (TOD) to a named beneficiary, life insurance payable on death to a named beneficiary, and property (real and personal) held as joint tenants with right of survivorship (JTWROS), are not subject to probate and will pass by operation of contract or by operation of law to the person or persons you have named as beneficiaries or to your joint tenant outside the provisions of your Will. The person receiving those assets is not required by law to share those assets with the other beneficiaries of your estate and may not be required to use those assets to pay the claims against your estate. If that outcome would be inconsistent with your plan for the disposition of your estate, please let me know so that we may address those issues.
What is a Revocable Living Trust?
A trust is a contract where one (Grantor/Settlor) or two or more persons (Grantors/Settlors) transfers property to a non-person entity for the benefit of themselves, another person(s) or a charitable entity. If the creator, called the Grantor/Settlor, of this agreement sets it up during his/her lifetime, it is called a “LIVING TRUST.” If the creator retains the right to dissolve the trust, it is a “REVOCABLE LIVING TRUST.”
What are the Advantages of a Revocable Living Trust?
1) AVOIDS PROBATE – this could represent substantial savings for your beneficiaries.
2) AVOIDS COSTLY DELAY – a Revocable Living Trust can be administered much faster than the administration of a probate estate.
3) AVOIDS PUBLICITY – When your Will is filed it becomes part of the public records. Anyone interested can see a listing of your assets, debts and who will receive your property. Property held by a Revocable Living Trust avoids publicity. Therefore, property held by a Revocable Living Trust is private and the identity of who receives the distributions from a Revocable Living Trust is also kept private.
4) AVOIDS THE NEED FOR GUARDIANSHIP – One major advantage of a Revocable Living Trust is that if the Grantor(s) becomes incapacitated/disabled and can no longer handle his/her own affairs, the Living Trust will have named a “Successor Trustee” who will manage the Living Trust for the benefit of the Grantor(s). A
Guardianship or Conservatorship through Probate will never be needed for the assets that are held in a Revocable Living trust.
A Revocable Living Trust, if funded properly, will help your family and or loved ones avoid the probate process upon your death. A revocable living trust allows for a seamless transition during your life time, through incapacity, and after death. You are able to hand pick 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 and prevent creditors of your beneficiaries from laying claim to your family’s inheritance.
Advanced Directives
Designation of Health Care Surrogate & Living Will
Designation of Health Care Surrogate
Recently, Chapter 765 of the Florida Statutes was amended. These amendments took affect 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 HCS 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.
This document identifies the person or persons you have chosen to make health care decisions for you if you become unable to make those decisions for yourself (or under the new statute if you choose for the document to become effective immediately), and authorizes your physician and other health care providers to disclose to your surrogate sufficient information about your condition and treatment for your surrogate to make a meaningful and informed decision on your behalf. Your Designation of Health Care Surrogate may be modified or revoked at any time as long as you have capacity.
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 you’re attending physician and a 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 may be modified or revoked at any time as long as you have capacity. Please call me if you decide to modify or revoke your Living Will.
Note: You should give copies of your Designation of Health Care Surrogate and Living Will Declaration to your Health Care Surrogates and to your physicians and to the hospital where you are likely to go for treatment. Discuss these two documents with your physician at your next scheduled appointment to confirm that your physician is willing to honor your wishes regarding the cessation or withholding of life prolonging procedures in appropriate circumstances and ask your physician to make an entry in your medical records confirming the discussion of your wishes as expressed in your living will and confirming that your physician has copies of both documents in your file.
On October 1, 2011, the Florida Legislature enacted a new power of attorney statue. There are many changes in the law which may affect your existing documents. Even if your document itself is valid, there may be some provisions in the document that are not.
A durable power of attorney is an important legal document by which you authorize another person to act for you without any court supervision or approval. The person you appoint as your attorney-in-fact should be someone you trust completely. Although your attorney-in-fact will have a fiduciary duty to act in your best interests, 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 do other things which could be devastating financially. We call this to your attention because it will be your responsibility to take whatever precautions may be appropriate under the circumstances to protect your interests.
The powers granted to your attorney-in-fact will become effective the moment you sign your durable power of attorney and will continue to exist, even if you become incapacitated, for your entire lifetime, unless you revoke or terminate the durable power of attorney in a written instrument executed with the same formalities as the original instrument. A photocopy of your durable power of attorney will have the same force and effect as the original. You will have the right to revoke or terminate your durable power of attorney at any time as long as you have legal capacity. The powers granted to your attorney-in-fact terminate automatically upon your death. Your attorney-in-fact will have the right to receive compensation for services rendered on your behalf pursuant to the durable power of attorney.
Designation of Preneed Guardian
This is a document that is created while you have capacity to provide evidence to the Court of who you wanted to be your guardian, should you ever need one. This document is not legally binding on the Court, it is only used as an evidentiary tool for the Court.
