Copyright © 2019, The Law Office of Alain Roman, PLLC
The answer to this question can be very simple or very complex. Each of you is different, and your situation demands different planning. Therefore, it is very important to consult with an estate planning attorney to guide you through the planning process.
From my experience, when someone visits or calls my office looking to inquire about my services, most people just have the Last Will and Testament in mind. I believe this is because most of us get to thinking about estate planning only after some triggering event.
This event can be the death of a family member or due to our own experiences.
But in fact, estate planning is so much more than just leaving a legacy to your loved ones. Estate planning serves other purposes, not only when you pass away, but when you are alive.
An estate planning attorney can help you with asset protection, business planning, and even with tax planning.
In most cases, the earlier you visit an estate planning attorney the better off you will be because the estate planning attorney will have more time to formulate a specialized plan that fits your situation now and in the future.
A Revocable Trust allows you, the grantor, to contribute property into a trust, which in turn would be governed by the trust document. Typically, while you are alive, you will also be the trustee of the Revocable Trust. The trustee is the person who administers the Revocable Trust.
A Revocable Trust is recommended in many aspects because assets properly funded into the Revocable Trust will avoid Florida Probate. Although a Revocable Trust will make the estate plan more expensive, it can save you and your beneficiaries a lot of time and money not dealing with the Florida Probate Court.
Most Florida probate attorneys will either charge you hourly or a flat fee based on a percentage of the total amount of your probate estate. This is almost always a lot more money than what you would have pay to make the proper estate plan.
A Revocable Trust is also good because if you were to become incapacitated, the assets within the Revocable trust can be administered by your named successor trustee. This typically is someone you trust, and you feel secure with that person administering your assets.
The successor trustee would have to follow the trust documents and administer the trust faithfully and responsibly.
Absent the Revocable Trust or a Power of Attorney, you would have to go through Florida Guardianship to have the court name a guardian of your property, which is an expensive and demanding ordeal.
A huge misconception that I see all the time is that a Revocable Trust provides you asset protection while you are alive. In fact, a Revocable Trust does not provide any asset protection while you are alive.
However, when you pass away, a Revocable Trust becomes irrevocable, and at that point asset protection provisions can be included in the trust to protect your beneficiaries from their creditors. Typical asset protection strategies include the use of discretionary trust provisions and spendthrift provisions.
Finally, a Revocable Trust allows you to have control of how the assets will be distributed and the timing of the distributions. This is something that is incredibly useful when some of the beneficiaries of the trust are minors.
A Last Will and Testament allows you, the testator, to select who will be the recipients of your assets upon death. A Last Will and Testament is a living document, meaning that it does not go into effect until you pass away and the Last Will and Testament is deposited into the Florida Probate Court.
Although a Last Will and Testament transfers your asset at death, it does not transfer all your assets. Only Florida Probate assets are transferred with a Last Will and Testament. Probate assets include those assets that do not have any beneficiary designation or are held under a Revocable Trust.
When you create a Last Will and Testament, you must be careful to abide by the Florida Homestead Statute. The Florida Constitution and the Florida Statutes state that your Homestead may not be transferred in your Last Will and Testament or in your Revocable Trust if you are survived by your spouse and minor kids. However, if you don’t have any minor kids, then you may leave your Homestead to your spouse.
If you are not married or have any minor kids, then you may leave your Homestead to whoever you want, but if you don’t leave it to one of those individuals listed in the Intestacy Statute [cite], then the recipient of Homestead will not receive the asset protection features.
If you have minor kids, then a Florida Last Will and Testament is a document that all parents should have. This is because a Florida Last Will and Testament allows you to select the guardians of your children if you were to pass away.
Having a Last Will and Testament allows you to select who the recipient of your assets will be. If you don’t create a Last Will and Testament, then the Florida Intestacy Statute will pick for you. Sometimes individuals are happy with the selection of the State of Florida, but this is not always the case.
The one downsize to the Last Will and Testament, is that the assets transferred will have to go through the Florida Probate System. As mentioned above, creating a Last Will and Testament is typically cheaper than creating a Trust, however, this will cost your beneficiaries a lot more when it comes time to the transfer of the assets.
Most Florida Probate attorneys will charge your personal representative either hourly or a percentage of your probate assets. This could cost your beneficiary and your estates thousands of dollars which could instead go to your beneficiaries.
A Last Will and Testament is a document which is always recommended. This is because even if you create a estate plan, you may forget to fund your trust or something could go wrong with one of the assets which has a beneficiary designation.
A Power of Attorney allows you, the principal, to select an agent to take financial and health care decisions on your behalf.
Although a Power of Attorney allows you to also make health care decisions, it is typically not recommended. Most estate planning attorneys use separate documents to provide for more clarity. In addition, the person you would want to make financial decisions on your behalf is not the same person you want making health care decisions.
A Power of Attorney is important because it can remain effective in the event of your incapacity. This is done by adding language into the Power of Attorney to make it ‘durable.” Special language must be included within the Power of Attorney to make it durable.
The durable power of attorney is used as one of the least restrictive means to a Florida Guardianship.
Although the person you select acts in a fiduciary capacity, you must make sure to appoint an agent that you trust. This person will be able to make financial decisions on your behalf, which may or may not be the same decisions you would have made.
This is one of the reasons that Revocable Trust typically provide more control and are better vehicles in the event of an incapacity. The Revocable Trust document will have more directions and ways to remove the Trustee should the person act outside its capacity.
Although a Durable Power of Attorney has its positives and negatives, it is still a document used widely by estate planning attorneys in almost all scenarios.
A Health Care Surrogate allows you, the principal, to select an agent to make health care decisions on your behalf. A Health Care Surrogate also allows your agent to receive health care decisions on your behalf.
The power to make and receive health care decisions can be made effective immediately without you having to be declared incapacitated. Although your agent might be able to make health care decisions on your behalf, while you have decision making capacity your wishes and decisions will be controlling.
A Health Care Surrogate is particularly useful when you have an elderly parent and you want to stay updated with your parent’s health. Once you execute the Health Care Surrogate, the document will remain effective until it is revoked by you or it will terminate if you added a specific date on the Health Care Surrogate.
A Living Will allows you to make end-of-life decisions in the event that you are not capable of doing so. When you create a Living Will you decide if you want life-prolonging treatment to be given to you if there is no “reasonable medical probability” of your recovery.
A well drafted Living Will allows you to initial the procedures and treatment that you would like to be withheld. I can tell you from personal experience, that if you are placed in a position to make a decision of this magnitude for someone you love it would totally be an emotional burden.
The Living Will allows you to make a decision yourself. Although you might think that a loved one knows you very well, you don’t necessarily want to put that person in that position. This is why a Living Will is one of the essential documents in any estate plan.
Each estate planning document plays a role in the whole scheme. It is important to speak with an estate planning attorney to create a specialized plan that will fit your needs. This area of the law is complicated and you should always consult an estate planning attorney.
For the most part, the majority of estate planning attorneys will provide you with a free consultation, so money should never be a deterrence to find how you can create a legacy or protect yourself. If you have any questions or want to know more information about estate planning and how we can help you here at Perez Roman Law, do not hesitate to send us a message or give us a call to schedule a free consultation.