Estate Planning

TOPICS: Common Questions |  Essential Planning tools |  Tools for Senior Citizens

What is estate planning and why do I need it?

Estate planning involves taking a comprehensive look at your family, your health, and your finances and making informed decisions about your future. Since none of us know when our time on earth will come to an end, we need to plan now for events that could occur tomorrow. Failure to do so can leave your loved ones with unpleasant and unnecessary issues to resolve.

Many people under the age of 50 tend to make the assumption that they do not need to have estate planning documents, such as a Last Will and Testament, Durable Power of Attorney, Health Care Surrogate Designation, or Living Will. Nothing could be further from the truth! The moment a person turns 18, they should get a Durable Power of Attorney, Designation of Health Care Surrogate and Living Will in place. If they own any assets, they should have a Last Will and Testament prepared as well.


Other Commonly Asked Questions:

Q: If I’m married, why do I need a will? Won’t all of my possessions automatically go to my spouse?

A: Not necessarily. That will generally depend upon how your personal assets are titled, and whether or not you have any minor children from a current or previous marriage or relationship. A consultation at our office will afford you the opportunity to learn exactly where your assets will go upon your death and give you the opportunity to make sure that your wishes are carried out.

Q: Is there a way that I can let my family know who I desire to get custody of my children if something were to happen to me and my spouse?

A: Yes. The ultimate decision as to who would be awarded custody or guardianship of the minor children would be made by the court. However, a Pre-need Guardian Designation for Minors is the best way to make your wishes known. Don’t assume that just because you told “Aunt Sue” and “Uncle Don” that you would like them to raise the children in your absence that the issue is resolved. Other family members may feel that they would be the best suited as your children’s guardians. This could be the beginning of a family feud and possible courtroom battle. One simple document can help to avoid that. Our firm can prepare this document for you and have it properly deposited with the court.

Q: I keep hearing about living trusts. How do I know if I need one?

A: Living trusts, also known as revocable trusts, have been used for hundreds of years by the wealthy as a method to avoid unwanted tax consequences upon their death. More recently it has become the legal instrument of choice for people of all tax brackets who want to avoid probate proceedings upon their death. If set up and funded properly, a trust can be a tremendous tool in probate avoidance. However, just like a will, a trust is not a one-size-fits-all document. It must be tailored to meet your needs and the needs of your loved ones. Our firm can help you to determine whether or not you are a candidate for a living trust.


Essential planning tools for adults with minor children

Last Will and Testament – This document allows you to direct where your belongings (real estate, tangible personal property, bank accounts, etc.) will go upon your death, instead of allowing the state to make that determination for you. Don’t simply assume that your spouse will get it all. Under Florida law, if you die without a will (“intestate”), your spouse will either receive (1) the first $60,000.00 of your estate plus one-half of the balance of the intestate estate, or (2) just the first one-half (1/2) of your intestate estate. The amount your spouse receives depends on whether your surviving lineal descendants are also the lineal descendants of your surviving spouse. Confused?

Our firm can help you understand the importance of proper planning utilizing a Last Will and Testament.

Durable Power of Attorney (DPOA) – An extremely important and powerful document which allows your chosen “attorney-in-fact” or “agent” to handle a myriad of financial and legal matters on your behalf. This document is crucial in avoiding unwanted guardianship proceedings should you become mentally incapacitated. There was a major law change concerning power of attorney documents in the State of Florida effective October 2011, so it is imperative to make sure that you have an up to date DPOA document.

IMPORTANT TIP: Do not let your DPOA become “stale.” Many financial institutions will not accept a DPOA that is over one (1) year old. Our firm can prepare this document for you and assist you in understanding its various uses.

Health Care Surrogate Designation – Choose the person (s) who you trust the most to make educated medical decisions for you when you are unable to make them yourself. Don’t assume that your spouse or other family members can automatically make decisions for you. The Federal Health Insurance Portability and Accountability Act (HIPAA) has made this a very unsettled issue among healthcare providers. Make sure your document has appropriate HIPAA release language. Our firm can prepare this document for you.

Living Will – If it is your desire to not be kept alive by artificial means when you are: (1) in the final stage of a terminal illness, (2) in a persistent vegetative state, or (3) suffering from an end-stage condition, from which there is no reasonable medical probability of recovery, you need to have a living will in place. Make sure your document has appropriate HIPAA release language.

Pre-need Guardian Designation – Being prepared is always important, but that is especially true when it comes to your minor children. Should you and your spouse both die or become mentally incapacitated, this document makes clear to the Court who you desire to be your children’s legal guardian.

Last Will and Testament – This document allows you to direct where your belongings (real estate, tangible personal property, bank accounts, etc.) will go upon your death, instead of allowing the state to make that determination for you. It must be properly witnessed in accordance with Florida Statutes to be valid.


Essential Planning tools for Senior Citizens

Durable Power of Attorney (DPOA) – An extremely important and powerful document which allows your chosen “attorney-in-fact” to handle myriad of financial and legal matters on your behalf. This document is crucial in avoiding unwanted guardianship proceedings should you become mentally incapacitated. A major rewrite of the power of attorney statutue became effective in October 2011. It is imperative to make sure that you have a document that is up to date.

IMPORTANT TIP: Do not let your DPOA become “stale.” Many financial institutions will not accept a DPOA that is over one (1) year old. This is because the older your document becomes, the greater the possibility that a revocation of the document has occurred. Financial institutions are just not willing to take that chance.

Health Care Surrogate Designation – Chose the person (s) who you trust the most to make educated medical decisions for you when you are unable to make them yourself. Don’t assume that your spouse or other family members can make decisions for you. The Federal Health Insurance Portability and Accountability Act (HIPAA) has made this a very unsettled issue among healthcare providers. Make sure your document has appropriate HIPAA release language. Our firm can prepare this document for you.

 Living Will – If it is your desire to not be kept alive by artificial means when you are: (1) in the final stage of a terminal illness, (2) in a persistent vegetative state, or (3) suffering from an end-stage condition, from which there is no reasonable medical probability of recovery, you need to have a living will in place. Make sure your document has appropriate HIPAA release language and that you have named someone to “stand in your shoes” for when the time has come.  Deciding on what measures to keep and to avoid during your final days is not as simple as you may think.

Medicaid Planning – As elder law is an important part of our practice, we can discuss with you the best way to plan for the future. An increasing number of senior citizens are spending their final years in assisted living facilities (ALF) and nursing homes. Make sure that your family will remain financially secure if this event occurs by becoming knowledgeable now.

IMPORTANT TIP:  The time to plan is now. Medicaid currently has a five year “look back” period, which means they can look at your finances for the five years immediately preceding the date you apply for Medicaid. With the cost of ALFs and nursing home facilities ranging anywhere from $5,000.00 to $10,000.00 per month, advance planning is critical. Failure to plan ahead will most likely result in a denial of much needed benefits, and the rapid depletion of a modest estate.