Estate planning is the preparation of documents for use in the event of incapacity or death. A basic estate plan typically includes the following:
- Last Will and Testament
- Durable Power of Attorney
- Advanced Directive for Health Care
- Living Will
- Nomination of Preneed Guardian
Often, an estate plan will also include a Revocable Living Trust, and accompanying documents such as a Certificate of Trust and Deed to Trust. An estate planning attorney will advise regarding the differences between a will and a trust and how to avoid probate. Joint ownership, beneficiary designations, and life estate deeds are all ways to avoid probate and should be considered along with a will and trust as part of an estate plan.
Estate planning documents provide the opportunity for clients to name beneficiaries of their assets, whether they own a large estate with complex trust provisions, or simply want to ensure that their mother’s wedding ring is given to their only granddaughter. When one dies without a will or a trust, it is called “intestate” and Florida law governs distribution. Rather than allowing Florida law to determine how your assets are distributed, it is important to memorialize those decisions and create an estate plan.
Additionally, it is planning for incapacity. An agent acting under a power of attorney may continue to pay bills, write checks, contact insurance agencies, and generally act in the shoes of someone who is unable to act for himself. A well-drafted durable power of attorney minimizes the disruption of daily life during a stressful time. It is a common misconception that a spouse or child can simply assume this role. Unfortunately, if one suffers from mental incapacity, and does not have a properly executed durable power of attorney and nominated health care surrogate, a legal guardianship may be necessary. A legal guardianship is an expensive and time-consuming court procedure, which often continues for the duration of the ward’s lifetime.
Anyone can benefit from estate planning, but it is especially important for the following people:
- Families with Minor Children – Parents can name a guardian for their minor children in their Wills and they can establish a trust for inheritance by a minor to avoid them receiving distribution when they turn 18 years old.
- Families with Special Needs Beneficiaries – Often people with special needs receive government benefits to pay for their care. An inheritance may cause those benefits to be disrupted or suspended. A special needs trust may allow a beneficiary to continue to receive benefits while still receiving the benefit of the inheritance.
- Blended Families/Second Marriages – It is quite common for people to enter into a marriage without understanding the rights of a surviving spouse in Florida. An attorney can explain those rights and can advise regarding a prenuptial or postnuptial agreement, or a trust that may become irrevocable upon the first spouse to pass away.
- Persons without Family – If one passes away leaving a large estate and only long-lost relatives, it may become a daunting task to determine how to locate heirs, and how to collect and distribute the estate. It may be a great opportunity for charitable giving or for one to connect with family during the planning process.
- Large Estates – Families with large estates may be able to minimize tax consequences and add provisions to ensure the longevity of their estate through proper planning.
Wetherington Hamilton’s own Elaine McGinnis has over ten years of experience in handling estate planning, probate, trust administration and elder law cases. If you have questions about your existing estate plan or need to get started in the estate planning process, please give us a call at 813-676-9082 or email the author at ElaineM@whhlaw.com.