PROBATE
Probate is the transferring of title after death. Around 70% of Americans pass away without having an estate plan. This means that those Americans had to go through probate where it is up to the court to decide what happens to all their assets and which beneficiaries will receive from the estate. This is a lengthy process that can get very expensive and it can all be avoided simply by having an estate plan. Below are the documents that make up a complete estate planning package that will have your legacy protected.
WILLS
A Will allows you to:
- Choose someone you trust to manage your estate, pay your debts, and distribute assets as you directed;
- Ensure that your assets benefit the people you choose, whether the asset is a large brokerage account or a box of old family photos;
- Choose which assets are to be liquidated to pay debts, if necessary, and which are preserved for your beneficiaries;
- Provide for the support of any minor children who survive you.
A Living Will
A living will, which informs your family and health care providers to terminate any life-prolonging procedures upon the end stage of a disease, a terminal condition or if you are in a permanent vegetative state with no reasonable recovery. Without a living will in place, family members, loved ones or a court-appointed guardian will have to make critical end-of-life choices for you. This can often lead to disagreements, fighting and costly litigation.
Last Will & Testament
A last will and testament, which ensures your personal property is distributed as you see fit. While strictly financial assets are best managed through living trusts, a will is the best way to address how to distribute tangible personal property, such as:
• Jewelry
• Antiques
• Clothing
• Silverware
• Sports memorabilia
• Book collections
"Pour Over" Will
Although living trusts are a useful tool in assisting one in estate planning, it should be noted that the necessity of a will has not been totally dispensed with merely by the creation of a living trust. One should also have, in addition to a living trust, a “pour over” will, or a will that provides that any assets not transferred to the living trust at the time of the grantor’s death are to be transferred to the trust at the time of the grantor’s death. This is necessary because inevitably there are always some assets which have not been transferred to the trust at one’s death, and this method assures that they too will be controlled by the trust in a method that the grantor chooses, rather than distributed according the various state laws regarding intestacy.
TRUSTS
What is a trust?
A trust is a document in which a person, the Grantor, states that s/he is giving ownership of some or all of his/her assets to someone, the Trustee, who is to hold, manage and ultimately distribute the assets to or for the benefit of a Beneficiary. The trust will state how and when the Trustee may pay income, earned by investing the trust property, and Principal, the trust property itself, to the Beneficiary.
Why should I have a living trust?
- To designate the people whom you wish to receive your assets (without a will or trust, state law will decide);
- To prevent the need for court-supervised guardianship by appointing a Trustee to hold and distribute assets for minor children until they become adults;
- To protect assets from an heir’s creditors by leaving those assets to a Trustee for the use and benefit of that heir; and
- To prevent payment of estate taxes by use of tax-saving trust provision in the trust.
- To avoid the costs and lack of privacy associated with probate of a will.
Can I have a living trust and retain control of my assets?
Yes. If you are the Trustee of your own living trust, you can make changes to the trust terms and move assets in and out of the trust or sell them as you choose. You may even revoke (terminate) the trust.
Is probate necessary to transfer my assets from the trust to my family or heirs?
No. Since the trust is established while you are living and the assets are placed in the trust, the trust will continue after your death and the successor Trustee will be able to distribute income and assets to your heirs without probate.
What if I own property in another state?
You can place out-of-state real property in the living trust and thereby avoid the necessity of a foreign probate to transfer ownership to your heirs. Without a trust, a probate will have to be done in every state where real property is owned.
Does a living trust protect my assets from my creditors?
No. While you are acting as Trustee and Beneficiary of your trust, your assets in the trust are not insulated from claims by your creditors. However, after your death, the trust can provide that the assets will be protected from the creditors of your heirs as Beneficiaries.
What is a Special Needs Trust?
A special needs trust is designed so that you can have peace of mind that your loved one with special needs will be taken care of in the future without the loss of government benefits. even after he or she inherits assets. Without it, it is common for public benefits to be put on hold while the inherited assets are used to pay for the special care and attention necessary and only once the estate is depleted do government benefits resume often leading to gaps in care.
GUARDIANSHIP
What is a Guardian in Florida?
A Florida guardianship creates a legal relationship between a guardian and their ward. A ward is someone a court has declared legally incapacitated and in need of a guardian to make important decisions, this includes both minors and adults. A probate judge in the county where the ward resides appoints a guardian after someone files a Florida guardianship petition. This is often a family member, but other persons or entities can file it, therefore the only way to determinatively choose the guardian needs to be stated in the estate planning beforehand.
Minors
In the unlikely event that minor children are left parentless as a result of an unfortunate accident, or the sole surviving parent becomes incapacitated, the children will be facing a traumatic and emotionally devastating life change. Uncertainty about where they will go or who will care for them can only aggravate that stress and confusion.
Florida law allows parents to designate a guardian in advance so that a trusted person is ready to step in as needed. Most often, this will be achieved through the appointment of a pre-need guardian. The parents of minor children may nominate a pre-need guardian of the children’s persons or property or both.
Adults
An adult Florida guardianship is needed when the ward’s decision-making process is impaired. This can be through mental or physical disability. In that case, a guardian will be appointed to be a surrogate decision-maker by the court if not established in the estate planning beforehand.
DURABLE POWER OF ATTORNEY
What is a Durable Power of Attorney?
A Durable Power of Attorney allows the principal to provide a trusted person with decision-making power if the principal becomes unable to manage their own affairs such as manage investments, pay the principal’s bills from the principal’s accounts, register and insure vehicles, and otherwise maintain their property and obligations while the principal is incapacitated. The importance of this power of attorney is that it does not terminate if the principal becomes incapacitated. Without it, if the principal becomes incapacitated the family will have to wait for a court order designating a guardian.
Medical Power of Attorney
A medical power of attorney, which allows a designated individual, often either a family member or friend, to make health, medical and surgical decisions for you should you become incompetent. These documents can be drafted narrowly or broadly and will be used to grant an agent the ability to make decisions such as refusing medical treatment or requesting complex procedures if the patient is unable to make the decisions on his or her own.