Copyright © 2019, The Law Office of Alain Roman, PLLC
You may think that the role of an estate planning attorney is only to prepare documents for the preparation of your assets after death. However, estate planning is so much more than that.
Estate planning attorneys not only assist you with the transfer of wealth after death, but can also assist you with incapacity planning, asset protection, medicaid planning, federal estate and gift tax, special needs planning, and much more.
The earlier you see an estate planning attorney the more advantageous it will be. Life can change at any moment, the earlier we set up your estate plan the more we can tailor it for your specific purpose.
One of the primary goals of an estate planning attorney is to avoid Probate court. Why do you want to avoid Probate court? Its simple, it is expensive and time consuming, not to mention any family conflicts that might ensue due to the inheritance.
Let me give you an example to make the illustration on why avoiding Probate court can be so significant. According to Florida law, it is reasonable for an Miami probate attorney to charge 3% for any estate with assets under 1 million. If you did not get around to creating your estate plan with a Miami estate planning attorney, and lets say you had $500,000 worth of probate assets, the typical probate attorney in Florida is able to charge you $15,000 as a reasonable fee. Not to mention that your assets will be tied up in Probate court for months, sometimes even years.
That is crazy compared to how much you would pay an estate planning attorney to create an estate plan tailored to you that avoid Florida Probate court and saves your estate and beneficiary a lot of money, time, and confrontations.
In Florida we have an elderly population. Many people come to retire due to the excellent weather we enjoy. As you grow older, chances are that we won’t function the same way or might need some extra help.
This is where incapacity planning comes in. There are two documents that are particularly useful for incapacity planning, the durable power of attorney and the health care surrogate.
The durable power of attorney and the health care surrogate allow you to select an agent to make decisions on your behalf. One is used for financial decisions, while the other is used for health care decisions.
Having these two documents properly in place, might help you avoid Guardianship court if you cannot make decisions on your own or have some debilitating disease like Dementia or Alzheimer.
The reason why you would want to avoid Guardianship court are similar to the reasons why you want to avoid Probate court. Guardianship is a court process that can be very expensive. On top of that, if you are declared incapacitated certain rights are taken way. Examples of the rights that are taken away are the right to marry, right to vote, right to decide where you should reside, etc.
With the passing of the Tax Cuts and Jobs Act of 2017, the federal estate tax impacts less individuals. This is because the unified credit or exemption amount was increased from 5.4 million to 11.4 million index for inflation. This means that in order for you to owe any federal estate tax when you pass away, your estate assets must be higher than 11.4 million dollars, and if you are married, that number doubles.
As an estate planning attorney it is my job to analyze your present situation and any future changes. The 11.4 million exemption amount for the federal estate tax is set to sunset in the year 2025. If Congress does not extend it or makes it permanent then that number will be reduced to the previous amount of 5 million index for inflation. This means that we estate planning attorneys must be vigilant to changes in the law and to our clients situation. A sudden appreciation of assets or a business deal can well of place you above the line.
Nonresident aliens who are domiciled in the United States are specially vulnerable to the federal estate tax. Unlike a U.S resident or citizen, the foreign individual only enjoys an exemption amount of $60,000. Many foreign individuals come to the U.S. and invest capital in businesses and other real estate ventures without first doing the proper planning. Passing away with U.S. property without a proper estate plan in place can be costly, sometimes even devastating, with taxes being as high as 40%. Hence why it is so important to speak to an international estate planning attorney before you invest here in the U.S.
In 2019, you can presently gift up to $15,000 per person without incurring any tax liability for gifting. If you are married, you can use your spouses exemption amount if he or she does not use it.
Gifting is an strategy to reduce your estate tax liability. By gifting, you effectively reduce your total net worth and the amount you have to pay in estate tax if you surpass the 11.4 million threshold.
If you gift an amount greater than $15,000 any given year to one person, you must file a Form 706, Federal Gift Tax Return, to declare the gift. Any amount greater than the $15,000 reduces your unified credit and you won’t have to pay any gift tax so long as you have enough unified credit left.
Asset protection planning is also one of the major roles of the estate planning attorney. With today’s litigious mindset, asset protection planning is at the forefront of any estate planning attorney’s mind, specially here in Miami.
Luckily, we live in Florida, which is one of the States with one of the most debtor-friendly laws in the nation. Therefore, it is important to plan accordingly and before any issues arise.
Asset protection strategies in Florida utilized by estate planning attorneys usually involve the use of Florida business entities, irrevocable trusts, and other aspects of the law like tenancy by the entirety and the Florida Homestead laws.
Medicaid planning should be done as early as possible. The reason for this is that the Agency for Health Care Administration has a 5 year penalty rule that is imposed for any transfers that are made with the intent to qualify for Medicaid eligibility.
There are strategies to qualify a person for Medicaid. Certain assets and transfers are not counted for Medicaid purpose. This is a very complicated area of the law and the assistance of a Medicaid planning attorney should always be used.
With the increasing cost of health care in the United States, Medicaid planning can be advantageous for many elderly adults.
Special Needs Plannings is done for a disabled individual or for children with a behavioral disease.
Special needs planning is specially important if the disabled individual is receiving Medicaid. If the person were to receive an inheritance or a settlement outright, he or she would lose their Medicaid eligibility.
You would be shocked how many people leave assets to individuals receiving Medicaid, this is actually a disaster for that person. The cost of losing Medicaid far outweighs any inheritance that they would otherwise receive.
Special needs planning typically involve the use of a Special Needs Trust. The purpose of the Trust is to tailor in a way that it servers as a supplement to Medicaid and other governmental benefits, not as a replacement.
For the most part people come to estate planning attorneys later on in life or when they have a traumatic event (like a death in the family). My goal is to counsel you and provide you support, the last thing you want to worry about is the legal issues.
Part of being an effective estate planner is knowing the family dynamics. Not every family is the same, some are blended, others are united, and others are just in complete chaos, but that does not make them any less of a family. It is my job to confront those potential issues to maximize your intentions when you are no longer with us or in the event you are not capable of making your own decisions.
Creating close relationships is just part of the job. It makes me a better estate planning attorney.
If you have any questions or concerns do not hesitate to contact me. I can offer you a free consultation and our conversation is fully confidential.