Estate Planning
Estate planning is not only a necessity for wealthier persons who seek to reduce or eliminate federal estate tax burdens, but it is a necessity for individuals, young or old. A well-crafted estate plan can:
1. Designate trusted individuals to help with financial and medical decision-making for you in case of your incapacity and avoid costly guardianship.
2. Provide a plan for your children if something should happen to you, including establishing your preference to act as your children’s guardian and setting up a vehicle to manage funds for your children’s needs.
3. Direct the disposition of your assets at death to those who you really want to leave your assets to.
4. Eliminate or reduce the cost of administering your estate upon your death.
5. Meet your needs through all stages of your life.
All Life Legal, P.A. will meet with you and listen to your specific goals and desires for your estate, and then will provide the most cost-efficient plan to meet those goals and desires. An estate can include some or all of the following:
- Last Will
- Trust
- Advance Directives
- Pre-Need Guardian Designation
- Disposition of Remains
Last Will:
A will is one of the most important documents in any estate plan. Even if a person has a living trust, a pour-over will is still necessary to capture any forgotten or later acquired assets that a person may have at death. If a person dies without ever executing a will, then that person’s assets will be distributed according to Florida law. Often times, this is not what the deceased would have wanted. By executing a will, you control the distribution of your assets upon your death, and can even direct a personal representative to set up trusts to further control distribution of those assets. This can be a very important and effective tool if one is concerned about a beneficiary’s ability to manage those assets once received.Trust:
Revocable Living TrustsA trust is a legally binding arrangement under which a person, the grantor (also known as the settlor) appoints another person, the trustee, to hold and manage the grantor’s property for the benefit of a third person, the beneficiary. The purpose of a trust, the duties of the trustee, and the disbursement terms are provided in the trust agreement.
There are advantages and disadvantages to consider before an informed decision can be made about utilizing a revocable trust in your estate plan. A revocable trust can avoid the probate, smoothly transition the management of your assets, and keep your estate information private. It also gives the grantor the option to disburse assets to a beneficiary over time, for example, at certain ages, instead of all at once. If you own real property outside of Florida, a revocable trust is essential to avoid the ancillary probate in that other state. A revocable trust does not provide creditor protection, or tax advantages during the life of the grantor. Any assets titled solely in your name with no payable-on-death beneficiary will be probated in accordance with your Last Will and Testament. Thus, probate may not be avoided if the trust is not properly funded or beneficiaries are not named on accounts.
Although a trust can be a probate avoidance tool, there are some benefits to filing a small probate estate to take advantage of creditor periods and appointing a personal representative to act on the estate’s behalf for issues that are individually in the grantor’s name. The attorneys at All Life Legal, P.A. can provide guidance in the creation and execution of a trust, and even guide you to determine if opening a small estate is in the best interest of the administration of and beneficiaries entitled to the assets in the trust. Call for a free consultation today.
Revocable Trust Creation and Funding the Trust
A revocable trust is created during the grantor’s life, and it may be revoked or amended any time before the grantor’s death. The grantor must execute the trust with the same formalities as a Will if it transfers property on the grantor’s death, meaning it must be signed in front of two witnesses and a notary. You must fund the trust at the time its created. Failing to fund your trust will leave your trustee with no assets to manage and subject your estate to probate. Funding your trust without careful planning can also lead to various negative consequences. For example, you may inadvertently trigger a due on sale clause in your mortgage when you re-title real property in the trust. Funding the trust is necessary and can be complicated, so it is best to have an estate planning attorney to walk you through this process.
Trust Administration During Grantor’s Life and After Death
A revocable trust can be revoked or amended by the grantor at any time during their life. Upon the grantor’s death, the trust becomes irrevocable and generally cannot be changed.
Trust administration is governed by the Florida Trust Code, and Federal tax laws. The trust will have two phases of administration. The first phase consists of trust administration during the life of the grantor. A grantor acting as trustee may sell or transfer trust assets without restriction. If a third party is acting as trustee, the Trust terms will set forth the proper administration during the life of the grantor and should include annual accounting requirements to the grantor.
Once the grantor passes away, the trust becomes irrevocable. This will begin phase two of the trust administration. Instructions for managing assets, paying creditors, accounting to beneficiaries, and disbursing assets upon the grantor’s death are explained in the trust document. Assets titled in the decedent’s name alone will require probate proceedings for disposition, so additional steps will be required to transfer these into the trust. The trustee is also responsible for determining the names of reasonably ascertainable creditors, and filing a Notice of Trust in the County where the grantor resided. After the trustee pays administration fees, expenses, and creditors, a trust accounting must be drafted and given to the beneficiaries. Finally, the trustee will disburse the net trust estate to the beneficiaries per the disbursement instructions. Due to the numerous steps, statutory requirements and exposure to financial liability, it is best that a trustee hire an attorney to help administer the trust properly. All Life Legal, P.A. is here to help and guide the trustee.
Trust Termination
A revocable trust will terminate and cease to exist for a variety of reasons. A grantor may revoke the trust during their life at any time, so long as they have capacity to understand their actions. If this happens, any trust assets will now belong to the grantor individually. If the grantor passes away, a successful and complete trust administration will terminate the trust. A trust will also cease to exist if the trust does not own any property. Less commonly, a court may terminate a trust if petitioned by the trustee or a beneficiary when there are problems with the trust. For example, the trust’s purpose may become illegal or impossible to fulfill, or the value of the principal in the trust becomes so low that it no longer makes sense to continue the trust.
Advance Directives
Advance directives documents guide individuals you nominate on managing your financial affairs, end-of-life decisions, and medical decision-making. The most common advance directives are the Durable Power of Attorney, Living Will and Health Care Surrogate Designation.Durable Power of Attorney
A Durable Power of Attorney is an agreement between an individual (called the “Principal”) and designated agent to act on behalf of that Principal. A Durable Power of Attorney is effective upon execution; however, it is important to note that an agent cannot act contrary to the principal’s wishes as long as the principal has capacity to act on their own, and must act only for the benefit and for the best interest of the principal when the principal lacks capacity to make their own decisions. Although standard forms are available, this is a powerful document that should be drafted carefully to help meet the individual client’s needs. A poorly drafted Durable Power of Attorney may not provide the designated agent with the powers needed to fully act on behalf of the principal, leaving the agent and/or family in a position to seek guardianship. Further, a poorly drafted durable power of attorney can also cause unintended tax consequences for the designated agent. It is highly recommended that you seek an attorney who understands the impact of these documents and can draft a Durable Power of Attorney that will meet your needs and avoid unintended consequences.
Living Will
With advances in medical technology, open and frank discussions with family members regarding end-of-life preferences have become increasingly important, but these discussions do not always take place. A Living Will, however, ensures that a person’s attitudes toward life-prolonging technology are known to family, friends, and attending or treating physicians should that person become incapacitated and have a terminal condition, end-stage condition, or is in a persistent vegetative state. A Living Will can remove any disagreements between family members about what decisions should be made at a time when emotions are already in crisis.
Health Care Surrogate
A Health Care Surrogate can be an important document, not only for the elderly, but for any adult. This document allows an individual to designate a person who may act on that individual’s behalf should they become temporarily or permanently incapacitated and are unable to make medical decisions for themselves. Although standard forms are available, an Elder Law attorney can help draft a Health Care Surrogate Designation that encompasses a client’s wishes and helps the decision-making process easier for the designee in case of the client’s incapacity.
Other advance directives may also include an Organ Donor Directive, Pre-Need Guardian Designation, and Disposition of Remains. For Domestic Partners who are not or cannot marry, these Advance Directives can provide the necessary means to maintain an important and active role in your partners life.
Contact All Life Legal today for a FREE NO Obligation 30 minute consultation at 1-813-671-4300.
Map