Holiday traditions don’t usually involve estate planning, but year-end is a great time to discuss your family’s future plans. This conversation should include speaking of parents’ or grandparents’ health, their assets, and a general overview of estate planning, such as who is in charge and who gets what. Giving your family a customized estate plan is the most meaningful gift they may receive this holiday season.
Estate planning begins with the decision maker of the family making a list of assets and liabilities. They must make a determination of who will take charge and manage the family assets in case of his or her incapacity and then ultimately, at their death. Along with that should come a list of beneficiaries. Beneficiaries are the individuals or charities that will receive the assets or a portion of the assets upon that family member’s death.
The next stage of estate planning involves meeting with a licensed attorney to give the best recommendations on how to achieve those results. The attorney’s recommendations will involve a variety of tools to help meet those individual goals. Those tools often consist of the below estate planning techniques:
Living Trust
A “Living Trust,” often knowns as a “Revocable Trust” is used in place of a Last Will and Testament (“Will”). After the Trust is created, 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 your beneficiaries through the Trust, and not through any court process. Upon inheriting any monies or assets through a Trust, the beneficiary enjoys financial protection from future creditors, divorces, and bankruptcy. These types of 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.
Wills
A Last Will and Testament (“Will”) although losing in popularity to a Living Trust, can still provide crucial financial organization. Wills are used to designate the beneficiaries who should receive your assets upon your death. 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.
Power of Attorney
The most common Power of Attorney used with estate planning is the Durable Power of Attorney. It allows you (the “principal”) to select a person (the “agent”) to “step into your shoes” if you become mentally or physically incapacitated. Incapacity 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 and 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.
Conclusion
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 directly to your loved ones. 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.
Contact OC Estate and Elder Law at (954) 251-0332 or info@ocestatelawyers.com to learn about the essential estate planning documents every family should have.
Happy Holidays, from our Family to Yours!
