 |
|
Frequently Asked Questions Index:
» What is estate
planning?
» What is a will?
» What happens if I do not have a will when I
die?
» Is my out-of-state will valid in Florida?
» What is a testamentary trust?
» What is a living trust?
» What is a Durable Power of Attorney?
» What is Guardianship?
» What is a Health Care Surrogate?
» What is a living will?
» Why should I have a lawyer prepare my will
or other estate planning documents?
» Why Long-Term Care Insurance Should be
Considered
Common Estate Planning Topics
Discussed Index:
» Estate Planning
» Wills
» Living Trusts
» Business Succession Planning
» Pre and Post Marital Planning
» Charitable and Tax Planning
» Trust and Probate Administrations
» Elder Law
» Guardianship
» Living Will
» Durable Power of Attorney
» Pet Trusts
» Why Plan With an Attorney
Frequently Asked Questions
- What is estate planning?
- Estate Planning is a lifelong process involving the
accumulation, management, conservation, and disposition of
your assets (estate) with the goal of providing you and
your family with the maximum benefit during your lifetime
and after your death. It may include planning to save or
reduce taxes, avoid probate or reduce its cost, provide
for incapacity, or protect your assets from creditors.
«top»
- What is a will?
- A will is a written document that disposes of your
estate at your death.
Some of the advantages of a will are:
- » It lets you direct the distribution of your property
at your death, rather than the State of Florida directing
the distribution through probate.
- » It can be used to create a trust instrument to
provide income and principal for the benefit of your
family or others after your death.
- » It can save probate expenses.
- » It allows you to name the personal representative
(executor) of your choice.
- » It can be used to name a guardian for your minor
children.
«top»
- What happens if I do not have a will
when I die?
- When you fail to leave a will, the laws of the State of
Florida determine who gets your estate through a process
called probate. The cost to administer your estate through
probate will probably be greater than if directed by a
will.
«top»
- Is my out-of-state will valid in
Florida?
- If the will was valid in the state where it was
executed, it will probably be valid in Florida. However,
it is wise to have your will reviewed by a Florida lawyer
to be sure that it complies with Florida laws regarding
the execution of the will, that the witnesses are readily
available to prove the will in Florida, that your personal
representative is qualified to serve in this state, and
that the will disposes of your assets at your death the
way you intended.
«top»
- What is a testamentary trust?
- It is a trust created by your will, which only takes
effect at your death. Such trusts are often used to
provide income for minor children or grandchildren, until
they are old enough to manage their assets, and to provide
income to care for handicapped or elderly persons. They
can also provide tax savings.
«top»
- What is a living trust?
- A Living Trust, or Revocable Inter-Vivo Trust, is a
legal document that authorizes a named trustee to manage
your assets for your benefit during your lifetime. It is
possible to name yourself or your spouse as trustee. The
living trust is often used to avoid or reduce the cost of
probate and to provide continuing management of your
assets in case you become incapacitated. In the case of a
husband and wife, living trusts may be created to provide
estate tax savings at their deaths.
«top»
- What is a Durable Power of Attorney?
- A Durable Power of Attorney gives legal authority to a
person to act as your agent, or attorney-in-fact. For
example, you may direct the agent to write your checks,
make bank deposits, manage your investments, or sell your
property. It is not affected by your subsequent incapacity
and may avoid the need for a court appointed guardian. If
you don't specify that you want the Power of Attorney to
be durable, it will automatically end if you later become
incapacitated. If you don't prepare a durable power of
attorney and you become incapacitated, your spouse,
closest relatives, or companion will have to ask a court
for authority over at least some of your financial
affairs.
- When you create the durable power of attorney, you
decide how much power the agent will have to act on your
behalf. Generally, broad power is given. Whatever powers
you give the attorney-in-fact, he or she must act in your
best interests, avoid conflicts of interest, maintain
records, and separate your property from his or hers. It
is imperative that the person you name as your agent is
someone you trust completely.
«top»
- What is Guardianship?
- Guardianship is a court proceeding in which a person
(guardian) is appointed either to take control of the
assets of an incapacitated person (called the ward) and/or
to make personal decisions for such individual.
- It is possible to designate in advance the person you
would like to serve as your guardian, should it ever
become necessary for you to have one. This is called a
Pre-Need Guardian Declaration.
«top»
- What is a Health Care Surrogate?
- You can name a surrogate or proxy to make health care
decisions for you should you become incapable of making
such decisions. However, the surrogate is not authorized
to make decisions to withhold or withdraw life-prolonging
procedures. Such authority should be given in a living
will.
«top»
- What is a living will?
- A Living Will, also called a Healthcare Directive, or
Right-To-Die Declaration, sets out your wishes about
withholding or providing extended medical treatment when
you are unable to communicate your wishes in the following
situations:
- » two doctors have said your death is imminent, or
- » you have ‘end-stage condition' (a longer term
irreversible illness that will result in death), or
- » you are in a ‘persistent vegetative state.'
- The directive creates a contract with the attending
doctor. Once the doctor receives a properly signed and
witnessed directive, he or she is under a duty either to
honor its instructions or to make sure you are transferred
to the care of another doctor who will. Florida law now
includes the right to withhold or withdraw food and water
(nutrition or hydration) as life-prolonging procedures. If
you have a Living Will, you may want to review it to
determine if this election was provided you.
- Many people mistakenly believe that healthcare
directives are used only to instruct doctors to withhold
life-prolonging treatments. In fact, some people want to
reinforce that they would like to receive all medical
treatment that is available -- and a healthcare directive
is the proper place to say so.
«top»
- Why should I have a lawyer prepare my
will or other estate planning documents?
- No sensible person would employ just anyone to fill
teeth, take out an appendix, or deliver a baby. The person
who wants these services performed skillfully with the
minimum risk to health, life, property, or the accurate
execution of his wishes, will engage the services of a
trained professional. The drafting of a Will, Trust,
Living Will, or other estate-planning instrument involves
making decisions requiring professional judgment, which
can be obtained only by years of training, experience, and
study. Only the practicing lawyer can avoid the
innumerable pitfalls and advise the course best suited for
your situation.
«top»
- Why Long-Term Care Insurance Should
be Considered
- » Medicare will only pay for limited periods of nursing
care following a hospital stay.
- » Medicare will not pay for long-term care that
involves non-medical help with daily tasks, e.g., bathing,
dressing.
- » Medigap policies and regular health insurance plans
do not usually pay for long-term care that involves
non-medical help.
- » Medicaid, the federal-state public assistance program
for the poor, does pay for nursing home costs but only
after a person "spends-down" their assets to a
level where they can qualify for aid.
- » According to the American Health Care Association
(National Center for Assisted Living) nursing home care
costs can exceed $50,000 per year.
- » The American Council of Life Insurance projects that
by 2030, nursing home care will average about $190,000 per
year.
- » Many people prefer to receive care in their homes.
«top»
Common Estate Planning Topics Defined
- Estate Planning
- Estate planning isn't reserved for the ultra wealthy.
Anyone with property, a business, or savings can establish
and estate plan. In fact, everyone should have an estate
plan because a well-crafted plan can provide direction
during stressful and emotional times.
- Estate planning means different things to different
people, but it's certainly much more than avoiding taxes
and divvying property. For you, it could mean avoiding
probate or reducing its cost. It could mean planning for
incapacity or protecting you and your family's
assets from creditors. Whatever your goals, a veteran
attorney can help you plan, craft and execute a
responsible estate plan.
«top»
- Wills
- Drafting a will isn't a measure to be taken at the end
of one's life. Creating a will that provides for your
family while you're still healthy and competent is an act
of love and ensures that your estate will be distributed
as you see fit and your family generously provided for
after you've gone.
- A will is a document that enables you to stay in
control, even at the end of life and a will is
particularly important to have in the event of a premature
or unexpected death because it will name the guardian for
any minor children who survive you.
- A will is more than the document that distributes your
property. It's also the vehicle through which you can
create a trust that provides income and principal to your
family, and a will articulates from where debts and taxes
will be paid.
- Without a will, State law will say where your property
goes instead of you. This may be a far cry from what you
would have said in a will.
«top»
- Living Trusts
- While you're still living, you can designate someone to
manage your assets. This is called a Living Trust or a
Revocable Inter-Vivos Trust and it's the legal document
used to authorize a trustee to manage your estate. People
often name themselves or their spouse as trustees, thereby
reducing the cost of probate and providing continuous
management of the estate in case you become incapacitated.
Living Trusts can also be used to serve estate tax savings
upon death.
«top»
- Business Succession Planning
- Your business may have been handed down for generations,
or it may be a business in which you've invested a
lifetime of sweat equity. In either case, your business is
important to you — it's part of your legacy —
and as such your share should be rightfully distributed.
Drafting a buy/sell agreement is a wise decision, a
decision that will leave nothing to debate so you can feel
comfortable knowing exactly who will control your share of
your company.
«top»
- Pre and Post Marital Planning
- Marriages, like life, don't always end as we expect.
Even if you planned for the future with your partner by
devising a premarital agreement, your marital goals may
have changed and you might need a way to ensure your
current marital wished are upheld.
- Perhaps you've divorced and want to provide for your
former partner and children, or perhaps your spouse died
and you wish to remarry. Whatever your current marital
goals, marital planning is an important aspect of your
overall estate plan.
«top»
- Charitable and Tax Planning
- Do you have a favorite charity? Do you currently
contribute to an organization that relies heavily on your
contributions? Establishing a charitable trust is a
wonderful way to give back to the community in which you
live and provide you income.
- Whether you're currently giving or want to give in the
future, you must be advised of the tax implications of
your charity. many of the laws regarding estate and gift
tax planning have changed and it's important to work with
an attorney whose knowledge is current so you can make
sure the organizations you care about benefit from your
generosity.
«top»
- Trust and Probate Administration
- If you own property and pass away, the property is
distributed by going through what's called probate. Every
estate must go through the process of probate, even if you
have a will. However, having a will makes the probate
process much less costly. Probate is the legal process by
which the court establishes ownership of your property,
the validity of your will, or resolves estate-related
disputes.
- There are some properties that don't require probate.
Such properties are joint tenancy properties or agreements
like insurance polices and retirement accounts. These
cases go to the surviving tenant or the beneficiary.
Probate is also not required for assets held in a trust.
- But for those properties that do require probate, there
are two types of probate: summary administration and
formal probate. Summary Administration covers smaller
estates that don't require court supervision because the
will is clear and the nature of the case is undisputed. Tn
this case, there is no centering administration and the
beneficiaries carry out the courts order. The property is
usually divided quickly and the process is quite short.
- The second kink of probate is formal probate and applies
to complex or contested estate and the court must be
involved in order to properly distribute holdings. The
court helps the personal representative appointed during
each step of the administrative process, which is
invaluable, but certainly adds time to the overall
proceeding. Formal probate is a welcomed alternative to
summary administration, particularly when disputes and
complex issues are involved.
- Attorneys are often hired to help personal
representatives through the probate process, regardless of
whether it's formal or informal. A will does not preclude
the need for probate, but a well-drafted will absolutely
minimizes the time, cost and headache involved in the
distributions of property upon death.
- Working with an attorney accomplished in Trust and
Probate Administration is a wise decision. Such an
attorney can guide your family during probate court
appearances and pleading and he can assist your family in
the collection, valuations and sale of assets or the
continuation of a business and the settlement of
creditor's claims.
«top»
- Elder Law
- It's important to know that as you age, you have
options. A good elder law attorney can competently explain
those options and can help you decide which option is
right for you. While elder law pertains to all issues
concerning the elderly, elder law is more appropriately
used to mitigate health care and incapacity issues.
«top»
- Guardianship
- A guardian is a person designated by the Courts to make
decision for the care for an incapacitated person. You can
appoint your guardian long before you may need him or her,
and they will be responsible for making decisions in your
best interest. If you appoint someone as your guardian
before you are incapacitated, you are undergoing a process
called pre-need guardian declaration. Fortunately, it's
not a lengthy process. in fact, it's nothing more than a
written declaration filed with the clerk of courts
clarifying whom you want to be your guardian. It's a
simple process that's invaluable.
- You can name a surrogate who will make health care
choices for you if you can't make them for yourself. This
surrogate is authorized to make most decision regarding
your health, but they can't make the decision to withhold
life-prolonging measures. Such decisions can only be made
if you prepare what's called a Living Will.
«top»
- Living Will
- A Living Will is also called the
Right-To-Die-Declaration. If you do not want a doctor to
provide extended medical treatment but you're unable to
tell him so, your Living Will can communicate your wishes.
Your doctor must follow your wishes or decline to act as
your physician any longer.
- Florida law recently changed and now the
Right-To-Die-Declaration also allows for the withholding
of food and water. You can use this tool also to emphasize
your desire to receive all the medical help possible in
order to sustain life.
«top»
- Durable Power of Attorney
- A Durable Power of Attorney gives someone of your
choosing the legal authority to act on your behalf. This
may result in this person writing your checks, making bank
deposits or managing your property. Such a person is also
called an attorney-in-fact and appointing one may help you
avoid the need for a court appointed guardian in the event
of your incapacitation, but you must specify that you wish
the Power of Attorney to be durable, otherwise is
automatically ends upon incapacitation.
- On of the many positive benefits in appointing a Durable
Power of Attorney is that you decide how much power this
agent will have. Typically however, broad powers are
given. Your attorney-in-fact must act with your best
interest at heart and so whomever you choose must be a
person you trust implicitly.
«top»
- Pet Trusts
- Pets are an integral part of one's family ans sometimes
pets outlive their owners. The idea that your beloved dog
or cat could be placed in the pound or worse, with an
unloving owner, is a troublesome thought. Fortunately,
recently passed legislation allows pet owners to provide
for their pets by establishing what's called a pet trust.
- A pet trust works in much the same way a trust works for
human beings. You can appoint a guardian for your pet and
leave money to your pet that will be used to ensure its
quality of life after you're no longer able to care for
him.
«top»
- Why Plan With and Attorney
- As you set your life goals, you'll find there's a lot of
information to manage. Why try to manage it alone? The
help of a seasoned attorney can prevent you from making
costly mistakes. Having someone to work with you can make
what is often an emotionally stressful process less
stressful and relative simple. Estate planning demands
professional judgment, judgment obtained by years of
training and study.
- Just as you wouldn't have any doctor deliver your baby
or pull you teeth, you also don't want just any attorney
drafting your Will or serving as your Guardian. Richard J.
Barron has over 30 years experience. Make the same smart
decision hundreds of South Florida families have made and
put Richard's national reputation for excellence to use
for you.
«top»
Disclaimer
This publication and the information
included in it are not intended to serve as a substitute for
consultation with an attorney. Specific legal issues, concerns
and conditions always require the advice of appropriate legal
professionals.
|
|
|
