First, we will ask you some basic information about your assets, liabilities, and family. We are not being nosey. This information will help us make a recommendation. For example, we’ll need to ascertain:
- Whether you might be subject to federal or state inheritance taxes;
- How much of your estate consists of tax-deferred assets (such as IRAs or annuities); and
- Whether there are any financial, medical, or marital concerns that might lead to special protections being afforded on the inheritance of one or more beneficiaries.
Once we have that basic information, we will advise you of our recommended course of action and begin to discuss the specific document to be utilized to implement your estate plan.
Your estate plan will likely consist of several of the following documents:
Last Will and Testament
A last will and testament, usually just called a will, is one means of disposing of property at death. If you do not make a will, the laws of the state will decide who gets your property, who administers your estate, and who becomes the guardian of your children.
If you are married, your spouse is entitled to a portion of your property by law, but without a will, some of your property may go to your children, rather than your spouse. You should therefore be prepared to discuss the allocation of your estate upon your death, as well as the person who will carry out your instructions, called a personal representative or executor.
Your personal representative will be responsible for managing your estate after your death, including paying creditors, filing taxes, and distributing your assets to your named beneficiaries. It is important to carefully consider who would best handle this responsibility.
If you have young children, we will recommend a trust arrangement to avoid a court-supervised (expensive) guardianship, and you should consider who you would want to act as their trustee and/or guardian.
A will has one big disadvantage, however: it must be probated after your death in order to be effective. Probate can be a lengthy, expensive, and very public process, though we can certainly help you reduce the expense and time should probate be necessary.
Revocable Living Trust
If probate is a concern, we will likely discuss a living trust with you. A living trust, also called a revocable trust, does what a will does – and much, much more.
There is no probate with a properly funded living trust. As a result, all expensive court proceedings and delays are eliminated, your privacy is preserved, and emotional stress on your family is minimized. It is extremely hard to contest a trust.
The person who administers a trust is called a trustee. You are the trustee as long as you are living and able. Upon your death, or should you become legally unable to handle financial affairs, you designate a successor trustee to step in and follow your instructions in the trust.
We also suggest you designate an alternate to handle matters if the first person you name as successor dies or is unable to act. Generally, the same person acts as both trustee and personal representative, since their duties are very similar.
Even if you are not subject to federal estate taxes, you may still benefit from a living trust. A common misconception people have is that the estate will not be subject to probate if their assets are not subject to federal estate tax. Full probate is required in Florida for estates as little as $75,001.
A living trust is not the only way to avoid probate, however. We will discuss the pros and cons of a trust in our initial meeting or phone conference.
Durable Power of Attorney
This legal document allows a family member or trusted friend to pay your bills, manage your finances, and sign other legal documents, such as insurance forms and tax forms, should you become unable to handle such legal or financial matters on your own. Depending on the nature of your incapacity (from sickness or accident), someone may need to assist you in these matters on either a temporary or permanent basis.
In our view, a durable power of attorney is an extremely important document that everyone should have, regardless of age, to guard against your family having to obtain permission from the courts to act on your behalf. The person acting under a power of attorney is called your attorney-in-fact or your agent.
You may want to designate one or more alternate agents if the primary agent cannot act (particularly if the primary agent is a spouse or family member who could be in an accident with you!)
This legal document tells your family doctor your instructions regarding termination of life-prolonging procedures when you are terminally ill.
Designation of Health Care Surrogate
A designation of health care surrogate, also known as a medical power of attorney, allows a family member to make health, medical, and surgical decisions for you if you become incompetent or disabled.
These powers are separate from those given in a durable power of attorney. It includes a HIPPA (Health Insurance Portability and Accountability Act) release, to facilitate release of medical information to the decision makers. It is often combined with the living will and is then referred to as a medical advance directive.
The person acting under this document is called your medical attorney-in-fact or your health care surrogate. You should consider the person(s) to act in this position; your health care surrogate does not have to be the same person named as your agent in your durable power of attorney.
Everybody has different strengths and weaknesses. While someone may be good at managing finances, he or she may not necessarily be the best person to make medical and end-of-life decisions for you.
We encourage you to discuss this issue with your family so you, and they, feel confident and prepared as to your wishes. Again, we recommend designating one or more alternate agents to act if the primary agent cannot.
This document can also facilitate the issuance of other medical directives by your physician where circumstances permit, including a POLST (Physician Order for Sustaining Treatment) or DNR (Do Not Resuscitate Order).
For most of our clients, some or all of the above documents will constitute a full estate planning. For certain clients, however, more complex planning may be needed to save taxes, protect assets from creditors of your beneficiaries, or protect assets in a divorce.
Should we determine that you might benefit from additional planning, we will discuss it with you. The consultation will be free, and you will know the exact cost to implement our recommendations before you are under any obligation.