Estate Planning

Estate planning is the process of arranging for the management and disposal of a person's assets upon their incapacitation or death. The primary goals of estate planning are to mitigate or eliminate the time and cost of probate, ensure that a person's wishes are carried out, minimize taxes and expenses, provide for loved ones, and facilitate the efficient transfer of assets.

Estate planning typically involves preparation of such documents as wills and trusts, advance directives for healthcare, durable powers of attorney, and Lady Bird Deeds.

Estate planning is not a “one-size fits all” proposition. It requires advice and counsel with an experienced attorney who can help answer questions allowing their client to make the best decision as to what plan bests fits their needs.

A last will and testament (commonly referred to as a will) is a legal document that outlines how a person's assets and property will be distributed after their death. It allows an individual, known as the testator, to specify who will inherit their property and assets, appoint guardians for minor children, and name an executor or personal representative to manage their estate and carry out the terms of the will.

A will provides the legal framework for the distribution of assets and the management of an individual's estate after their death. It is an essential component of estate planning and can help ensure that the testator's wishes are carried out and that their loved ones are provided for according to their wishes. However, it's important to note that a will must go through the probate process, during which the court validates the document and oversees the distribution of assets, which can sometimes be time-consuming and costly.

A valid will gives an individual the ability and control to decide who gets what upon one’s death. Without a will (referred to as “dying intestate”), Florida Statute 732, Part 1 dictates who gets what, which could result in assets going to people who may be less than desirable, or not going to people who are more desirable.

For instance, if one dies intestate, has children from a previous marriage, then remarries, and desires all their assets go to the surviving second spouse, Florida Statute 732.102 (3) will not allow it.

Or perhaps a parent is estranged from a child, and would prefer their assets go to someone other than that child, without a will, Florida Statute 732.103 entitles that child.to all the assets.

Finally a grandparent may want to give some assets to a grandchild. Without a valid will, under Florida Statute 732.103, that grandchild may get nothing.

Additionally, having a will allows one to decide who will manage their assets at death. A will names a personal representative (or executor) charged with that responsibility. Without a will, Florida Statute 733.301 (1) (b) dictates who is to act as personal representative.

In summation, having a will avoids all unintended consequences.

A will outlines how a person's assets and property will be distributed after their death. While a will is an essential estate planning tool, it typically does not avoid probate entirely. Rather, a will facilitates the probate process but does not necessarily avoid it. In fact, it is possible to avoid probate even without having a will.

A living trust, also known as a revocable trust or inter vivos trust, is a legal arrangement in which a person (the grantor or settlor) transfers ownership of their assets and property into a trust during their lifetime. The grantor typically serves as the trustee of the living trust, retaining control over the assets and property held within it. The trust document outlines how the assets should be managed during the grantor's lifetime and how they should be distributed to beneficiaries after the grantor's death.

In deciding if a living trust is the best estate planning strategy, there are many factors to consider. For example, what is the total value of the grantor’s assets? Does the grantor have minor children (under the age of 18)? Does the grantor wish to leave assets for other minors? Is the grantor concerned about the spending habits of an intended beneficiary?

Finally, though having a living trust can help avoid probate, it is not necessarily the best legal arrangement for everyone. There are other tools available for avoiding probate, without the complication and expense associated with a trust.

Estate planning is not a “one-size fits all” proposition. It involves advice and counsel with an experienced attorney who can help answer questions allowing each client to make an educated decision as to what arrangement makes the most sense.

Healthcare proxies, also known as a Designation of Health Care Surrogate and a Living Will, are legal documents that allow an individual (the principal) to appoint someone else (the surrogate or agent) to make healthcare decisions on their behalf if they become unable to do so themselves due to incapacity or illness.

A healthcare proxy typically grants the agent the authority to make decisions about medical treatment, including choices about medical procedures, medications, and end-of-life care. These decisions are made based on the principal's known wishes, as outlined in the document, or based on what the agent believes to be in the principal's best interests.

It is essential to choose a trusted individual to act as a healthcare proxy and to discuss one's wishes for medical treatment and end-of-life care with them beforehand. This document ensures that someone can advocate for the principal's preferences if they are unable to communicate or make decisions on their own.

A durable power of attorney (DPOA) is a legal document that grants someone else (the agent or attorney-in-fact) the authority to make financial and legal decisions on behalf of the person creating the document (the principal). The term "durable" indicates that the power of attorney remains in effect even if the principal becomes incapacitated or unable to make decisions.

The authority granted to the agent under a durable power of attorney can be as broad or limited authority depending upon the preferences of the principal. This authority can include managing finances, paying bills, making investment decisions, amending estate plans, and handling legal matters.

Unlike a general power of attorney, which may become invalid if the principal becomes incapacitated, a durable power of attorney remains in effect even if the principal is no longer able to make decisions due to illness, injury, or disability. The durable power of attorney is void upon the death of the principal.

The principal can revoke or modify the durable power of attorney at any time, if they are still competent to do so. This flexibility allows the principal to change agents or adjust the scope of authority as needed.

In selecting an agent, it is crucial for the principal to choose a trustworthy and responsible individual to act as their agent under the durable power of attorney. This person should be someone who understands the principal's wishes and can make decisions in their best interests.

Having a durable power of attorney in place is an essential part of an individual's estate planning process, ensuring that their financial and legal affairs are managed appropriately if they are unable to do so themselves.

A Lady Bird Deed, also known as an enhanced life estate deed or an enhanced remainder deed, is a type of deed used in estate planning, which allows the owner or owners of real estate, to transfer the property while retaining control and the right to use the property during their lifetime. The unique feature of a Lady Bird Deed is that it allows the owner to retain control over the property and the right to revoke the deed or sell, transfer, mortgage, or rent the property without the consent of the remainder beneficiaries.

The person who owns the property and creates the Lady Bird Deed is known as the grantor. The grantor designates one or more beneficiaries who will receive the property upon the grantor's death. These beneficiaries are known as remainder beneficiaries.

Despite transferring the property to the remainder beneficiaries upon the grantor's death, the Lady Bird Deed allows the grantor to retain control and use of the property during their lifetime. This includes the right to sell or mortgage the property without the consent of the remainder beneficiaries.

One of the main purposes of a Lady Bird Deed is to avoid the property going through probate upon the grantor's death. Because the property passes directly to the remainder beneficiaries outside of probate, it can save time and expenses associated with the probate process.

Lady Bird Deeds are sometimes used as a Medicaid planning tool to preserve the grantor's eligibility for Medicaid benefits while allowing them to retain control and use of their property during their lifetime.