What is estate planning? Estate planning means writing on paper who gets your stuff and who is in charge when you no longer are. Every family is unique and the estate planning strategies that we develop are unique to each family’s circumstances. We have a variety of tools to help meet your individual goals.
Everyone has an estate plan in their mind. If you don’t put it in writing, the state of Florida has its own plan in mind for you. Not having a Will or a Trust means that at your death – your assets, your home, your car, bank accounts, retirement accounts, life insurance, etc. will be distributed based on Florida’s inheritance laws and go through probate. Our Estate planning lawyers put together a comprehensive no-fuss estate plan that includes ALL your assets. We make sure your wealth goes to your loved ones, and minimize loss to future creditors or future ex-son or ex-daughters in law. We ensure that every estate planning document meets all the formalities of Florida law and help you execute each step necessary to reach the end of the process. Estate planning and probate is not the same thing and usually an effective estate plan will avoid probate.
A “Living Trust” is a primary estate-planning document that is used in place of a Last Will and Testament (“Will”). Assets are then transferred into the Trust.
- Trusts are used to by-pass probate. This means that upon your death, all assets in the Trust pass to the beneficiaries through the Trust, and not through any court process.
- Trusts can provide your beneficiaries with asset protection. Upon inheriting any monies or assets through a Trust, the beneficiary enjoys financial protection from future creditors, divorces, and bankruptcy.
- Trusts are fully revocable: the creator can change any terms or completely revoke (cancel) the Trust.
- Trusts are private documents that unlike Wills do not become a part of the public record.
A Last Will and Testament (“Will”) is an important estate-planning document that, although losing in popularity to a Living Trust, can still provide crucial financial organization. Our attorneys experienced in Wills can help you get organized.
- Wills are used to designate who should receive your assets upon your death. The people or charities you designate are called beneficiaries.
- Wills allow you to appoint someone to become “Personal Representative” of your estate. This person will be responsible for carrying out your last wishes according to what you wrote in the Will.
- If you have minor children (those under 18 years of age in Florida), you can appoint a Guardian(s) who will care for them in case of your death. This reduces lawsuits that arise over custody in cases of sudden or unexpected death.
- Downside #1 –Wills do not avoid the probate process. Meaning that even beneficiaries listed in the Will must go through a court process to inherit what is rightfully theirs. Conversely, Living Trusts help to avoid probate.
- Downside #2 – .Wills are public documents. Meaning that during the court process, the original Will is filed with the court and anyone can access it via the public records of that county.
Warning: each state has different requirements for how to validly execute a Will. We ensure every requirement of Florida law is met. This will prevent anyone from trying to challenge the terms of your Will after your death.
Power of Attorney
The most common Power of Attorney used with estate planning and Elder Law is the Durable Power of Attorney sometimes referred to as a financial power of attorney, general power of attorney, or a power of attorney for property. It allows you (the “principal”) to select a person (the “agent”) to “step into your shoes” if you become mentally or physically incapacitated.
means that a person has a disabling medical condition that prevents them from managing their basic needs and financial affairs. Incapacity can be caused by a number of conditions including Alzheimer’s, Dementia, Parkinson’s, etc. With a properly executed Power of Attorney, the agent will be able to make legal and financial decisions on your behalf. This is a very trusting responsibility so you should always appoint a family member or close friend.
The Power of Attorney document ends when a person passes away. At which point, your Trust or Will should kick in to dictate the terms of how to distribute your estate.
Health Care Surrogate & Living Will
A Health Care Surrogate, also known as a Health Care Proxy, allows you to plan ahead for difficult medical decisions. It allows you to name someone (the “agent”) that will make health care decisions for you in case you are unable to make them yourself. This is crucial because it prevents disagreements within the family as to who should make these critical decisions. Such decisions include consenting to certain medical procedures, seeking a second opinion, obtaining medical records, or transferring you to a different medical facility.
If you don’t prepare a Health Care Surrogate document, and you fall ill and cannot make your own medical decisions, then the healthcare facility will follow Florida law to determine who is responsible for your healthcare decisions.
A Living Will allows you to state your wishes about your end-of-life medical care. This allows your health care surrogate (person you nominate to make medical decisions for you) to best carry out your health care wishes in regards to life sustaining procedures. Living Wills include a set of legal instructions about the treatment you wish to receive if you are unable to make decisions for yourself. You can revoke or revise a valid Living Will at any time.
“Guardianship power of attorney”- A guardianship and power of attorney are two different things. Generally both apply to cases where a person is no longer capable of handling their own affairs and someone else must handle their affairs for them. The main difference is that in a guardianship proceeding a court appoints who will handle your affairs for you if you cannot but with a power of attorney you make that decision. Typically a power of attorney is a less restrictive alternative (meaning less freedom taken away) than a guardianship depending on the terms of the guardianship, which may vary by state.
“Medicaid estate planning”- The broad term “estate planning” usually includes “Medicaid planning”. Medicaid planning is important because it is a way to reallocate your assets in order to qualify for government benefits such as Medicaid. With rising healthcare costs, Medicaid planning can make a big difference, which means more money in your pocket.
“Power of attorney elderly”- There is not a specific power of attorney designated only for the elderly but a durable power of attorney (defined above) can be used for an adult at any age.
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