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estate planning Frequenty Asked Questions

What is estate planning?

At its more basic definition, estate planning is the process of setting up your affairs during your life, so that your selected beneficiaries inherit your property at death according to your wishes. Estate planning also encompasses planning for incapacity, asset protection, reduction of taxes, and other issues that might affect your plans or goals.

What is my Estate?

Your estate is the value of your property, real or personal, tangible or intangible, wherever situated, at the time of your death. IRC & 2031. When an estate planning attorney talks about your estate, he or she means the property that you own, whether real property, personal property, securities, stock, etc. 

What do estate planning attorneys do?

The role of the estate planning attorney is to protect the family dynamics should you become incapacitated or pass away. This is done through a series of documents that will insure that your family will be taken care of should you no longer be able to make decisions for yourself or if you are no longer with us.

How do I choose an estate planning attorney?

The first thing you can do is ask your friends and family to see who they have used before. You can also ask your CPA or financial advisor for advise. When selecting your estate planning attorney, make sure he has experience with what you are trying to accomplish. You don't need an attorney with 30 years of experience that will charge you a premium when all you are trying to do is to create a simple will to leave your home to your family.

What estate planning documents do I need?

The answer to this question varies with your estate and how complex your situation is. Most individuals need at a minimum a Florida Last Will and Testament. This is because you need to have a document that outlines your wishes and who you would want to inherit and administer your estate in the event of your passing. 

I created an estate planning checklist which you may find useful.

Other documents that are useful to have are the Durable Power of Attorney, Health Care Surrogate, and the Living Will. The purpose of these documents is to appoint an agent to make decisions on your behalf should you not be able to do so yourself. This is particularly important if you want to avoid Florida Guardianship Court. 

Finally, depending on the type of assets that you own, a Florida Revocable Trust could be a good option. Specially, if those assets would be subject to Florida Probate Court. 

What is Included In the Typical Estate Planning Package?

Most estate planning attorneys will draft one if not all of the following documents:

  1. Revocable Living Trust;
  2. Last Will & Testament;
  3. Durable Power of Attorney;
  4. Health Care Surrogate; and
  5. Living Will.

The use of Irrevocable Trusts and more advanced estate planning documents will depend on your objectives and the size of your estate. 

Do I need a last will and testament?

A Florida Last Will and Testament is always recommended. This is because it allows you to put in writing your last wishes, appoint who you want to administer your estate, and if applicable, appoint who the guardian of your minor children should be. 

In my experience, a Last Will and Testament is also important to avoid family conflict. When your wishes and instructions are not clear in writing, family member tend to argue on who should administer your estate, and what assets he or she should be entitled too.  

What is better a will or a trust?

The answer to this question depends on your type of assets. If Probate avoidance is desired, then the Revocable Trust is a good vehicle to achieve that end. However, not all property is subject to probate, only assets titled under your own individual name without a beneficiary designation are subject to Probate. Meaning that if you do not have any assets subject to Probate, then the Revocable Trust might not be completely necessary if the purpose is to avoid Florida Probate.

However, if the purpose is control, then a Revocable Living Trust would make total sense since you would be able to control what happens to your property after death. This would be done by electing your Revocable Living Trust as the beneficiary of your assets.

Regardless of whether you elect to have a Revocable Living Trust or not, the Last Will and Testament is always recommended. Whether as the principal estate planning tool, or as a backup to the Revocable Living Trust should any of your property end up in Florida Probate Court. In addition, the Last Will and Testament is particularly important if you have minor children.

How much does an estate planning attorney cost?

It is hard to put a price on estate planning. The reason being is that although the estate planning documents prepared by your estate planning attorney are important, most of the time what is most valuable is the experience and advice of the estate planning attorney. However, most estate planning attorneys in Miami range from $1,500 to $2,500 for the preparation of a Living Trust.

A good estate planning attorney will go over the situations that are affecting your life, whether good or bad. Will analyze your objectives and desires and determine whether there could be any pitfalls along the way and how to prevent them or minimize them.

In addition, the estate planning attorney keeps you out of court. In almost every situation, the fees of the estate planning attorney will be significantly lower than the attorney's fees required for a court proceeding. 

How do estate planning attorney charge for estate planning services?

Most estate planning attorneys charge a flat fee for estate planning services. This allows you to make an informed decision on the fees that you will incur in the matter and relieve some of the pressure that comes from hourly billing.

What happens if I pass away without a will?

If you pass away without a Last Will and Testament in Florida, then the Florida Intestacy Statute will apply to your probate asset. 

The Florida Intestacy Statute states that if you are married, and all your children are from the same marriage, then your spouse gets 100% of your probate assets.

If you have children from different marriages, then your spouse will get 50% and the rest of the children will divide the other 50%.

It is important to have a Florida Last Will and Testament because you may not agree how the Florida Intestacy Statute disposes of your probate assets. In Florida, the only person legally entitled to inherit is your spouse. Your surviving spouse is entitled to 30% of your estate.

Do I need to pay estate tax when I pass away?

As of 2019 if your net worth is lower than 11.4 million then you won't have to pay federal estate tax when you pass away. Some States have the same exemption as the federal estate tax exemption, but you should always check with your trusted estate planning attorney.

The federal estate tax exemption should sunset in 2025 and go back to the 5 million with inflation, subject to a new change in the law.

What is the point of a trust?

The main objective with a trust is to avoid probate or guardianship court should you become incapacitated or pass away. The second point of the trust is to give you control after you pass away. Compared to a will, the trust can last decades if you so desire.

What is the average price for a will or a trust?

In Miami, wills rage from $400-1000 depending on the experience of the estate planning attorney and the complexity of the will. Living trust range from $1,500 to $2,500 per individual. Estate planning attorneys will do discounts for married couples. I also do discounts for package services.

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