Estate Planning Fundamentals
Coral Gables, Miami & South Florida Estate Planning Law Firm
In the absence of any planning to the contrary, your estate will be distributed according to Florida’s laws of intestacy. This so-called “default” estate plan might not reflect your wishes. However, if you do plan in advance, you can have your estate administered according to your preferences.
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Last Will and Testament
A last will and testament is one part of a comprehensive estate plan. If a person dies without a will, they are said to have died “intestate” and state law will determine how their assets will be distributed. Some things you should know about wills:
- A will has no legal authority until after death.
- A will does not help manage a person’s affairs if they become incapacitated.
- A will does not help an estate avoid probate.
A will can be used to nominate the guardians of your minor children in the event that they are orphaned. All parents of minor children should document their choice of guardians. If you leave the appointment of guardian to chance, you might cause a substantial amount of family infighting, and your children could end up with the wrong guardians.
Trusts can serve a variety of legal, personal, investment or tax planning purposes. At the most basic level, a trust is a legal entity with at least three parties involved: the trust-maker (the grantor or settlor), trust manager (the trustee), and the trust beneficiary. Sometimes, all three parties are one person or a married couple. In the case of a revocable living trust, a person may create a trust and name themselves as the current trustee to manage the trust assets for themselves as a beneficiary.
Depending on the situation, there may be many advantages to creating a trust, including the avoidance of probate. In most cases, assets owned in a revocable living trust will pass to the trust beneficiaries immediately upon the death of the trust-maker(s) with no probate required. Certain trusts also may result in tax advantages both for the trust-maker and the beneficiaries. Trusts may be used to protect property from creditors, or simply to provide for someone else to manage and invest property for the trust-maker(s) and the named beneficiaries. If properly drafted, another advantage of trusts is their continuing effectiveness even if the trust-maker dies or becomes incapacitated.
Powers of Attorney
A power of attorney is a legal document giving one person (the attorney-in-fact) the legal right to do certain things on behalf of another person who grants those powers. A power of attorney may be very broad or may be very limited and specific. All powers of attorney terminate upon the death of the principle, and may terminate when the principal becomes incapacitated. When the intent is to designate a back-up decision-maker in the event of incapacity, then a durable power of attorney should be used. Durable powers of attorney should be frequently updated, because banks and other financial institutions may hesitate to honor a power of attorney that is more than one year old.
Health Care Documents and Advance Directives
An advance directive is a document that specifies the type of medical and personal care a person would want if they lose the ability to make and communicate their own decisions. Anyone over the age of 18 may execute an advance directive, and this document is legally binding in Florida. An advance directive can specify who will make and communicate medical decisions in the event of incapacity, and it can set out the circumstances under which life-prolonging treatment would be denied. For example, a person may want to have an advance directive to deny treatment if they are ever in a permanent coma with no reasonable chance of recovery.
A document that usually accompanies an advance directive is an authorization to your medical providers that allows specified individuals, who could be friends or family members, access to medical information. Without this type of prior written authorization, doctors are prohibited from disclosing confidential medical information.
Probate is one manner in which estate assets are transferred after death. Since probate can be a lengthy, costly and public process, many people choose to avoid it. Without proper probate avoidance planning, the state will require a probate court proceeding for state residents or those who owned assets in the state. During probate, assets are managed, debts are paid, tax returns are filed along with various court documents, and the estate assets are distributed.
In the absence of any planning to the contrary, your estate will be distributed according to Florida's laws of intestacy. This so-called "default" estate plan might not reflect your wishes. However, if you do plan in advance, you can have your estate administered according to your preferences. A comprehensive estate plan may include a Last Will and Testament, Trusts, Powers of Attorney, Advance Directives and Health Care Documents, all supporting your legal, personal, investment and tax planning purposes.
As our population ages, more and more people will confront elder law-related issues. Elder law is an aspect of estate planning that focuses primarily on the changing needs of people as they age. Careful planning can help you avoid spending down your assets on long-term care. Issues include senior housing and home care, long-term care, or nursing home care, guardianships, health care documents, Medicare planning, and Medicaid planning.
South Florida Estate Planning Attorney Brian C. Perlin, assists clients with Estate Planning, Elder Law, Probate Court, Probate & Estate Administration, Long-Term Care, Medicaid Planning, Veterans Benefits, Charitable Planning, Special Needs Planning, Estate Tax Planning, Business Succession and Asset Protection, in the cities of Miami, Coral Gables, and Kendal, Florida, and the surrounding areas.
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