WHAT IS ESTATE PLANNING?

     When visiting an estate planning attorney, expect to have your assets, family dynamics and long term goals analyzed. This information is necessary to coordinate planning for distribution of assets after death. An estate planning attorney may also review your wishes in case of physical or mental incapacity, including your wishes regarding your right to die without  excessive life-prolonging technology and expense.

     Among the legal documents which an estate planning attorney may deem appropriate under your particular circumstances are the following:  

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  • WILL - distributes your property after death through the probate process.

 

  • REVOCABLE LIVING TRUST - similar to a WILL, but, if properly funded, avoids probate and guardianship over your property after death or incapacity.

 

  • NUPTIAL AGREEMENT -  protects each spouses' separate property in case of death, divorce or incapacity.

 

  • DURABLE POWER OF ATTORNEY - allows a trusted friend or family member to make financial decisions, without court intervention, concerning your property should you become incapacitated

 

  • DESIGNATION OF HEALTH CARE SURROGATE - allows a trusted friend or family member to make medical decisions, without court intervention, concerning your medical care should you become incapacitated.

 

  • "LIVING WILL" - allows you to decide whether or not your dying should be artificially prolonged indefinitely should you become terminally ill and incapacitated.

 

  • PRE-NEED GUARDIAN DECLARATION - allows you to decide who will serve as your Guardian (if a guardianship is required) should you become incapacitated.

ESTATE PLANNING MYTHS EXPOSED

In my practice, and when addressing public groups, I can often encounter many people who hold mistaken beliefs regarding estate planning. The following are some of the more common misconceptions concerning estate planning.

  1.  If I die without a Will, the state will take everything. This is patently false. Florida has absolutely no claim as a beneficiary against the estate of a decedent unless the decedent dies leaving no living relatives at all.

  2. If my estate is small it will not be probated when I die. Wrong. With certain very specific exceptions, all estates must pass through probate regardless of their value. Granted, if an estate is worth less than $75,000.00, the kind of probate required is relatively quick and inexpensive. But it is still probate.

  3. Making a Will avoids probate. Wrong again. Although a Will does not create the need for a probate, it also does not in anyway avoid it. The nature of a decedent's  assets and how they are titled, i.e. joint tenancy or beneficiary named, determines whether or not probate will be required. Having a Will is still very important, however, because it guarantees that the assets will be distributed in the manner prescribed in the Will.

  4. If I die my spouse will get everything anyway. Not necessarily so. If a married person dies leaving children, in some cases the surviving children will inherit as much as fifty percent (50%) of the estate. And the amount to which children will be entitled can be even greater if  homestead real property is involved.

  5. If I have a "Living" Trust, my estate will avoid creditors when I die. Nope. The trustee of the "Living" Trust is legally obligated to satisfy all valid creditor claims to the same extent as is required in a probate estate. In fact, the time in which creditors have to press claims against a "Living" Trust is actually much greater than the time allotted in probate.

  6. If I have a "Living" Trust, my estate will escape Federal Estate Taxes. Although there exists certain sophisticated kinds of "Living" Trusts which do a very good job of minimizing, and in many cases even eliminating, Federal Estate Taxes, a simple "Living" Trust can do neither. Besides, most people will never have estates in which tax avoidance is an issue, under current law, the first 5.3 million of the taxable estate is exempt from taxes.