Florida Estate Planning Lawyer Blog

Mitchell Port a California lawyer posted a link to an article on the California Tax Attorney Blog about an article on the State Bar Website which provides information on estate planning. Although this is a California bar website, many of the same issues and considerations are important to Florida residents interested in Florida Estate Planning. Much of the information is also found on The Florida Estate Planning Lawyer Blog which primarily deals with Florida issues.

1. What Is Estate Planning?
2. What Is Involved in Estate Planning?
3. Who Needs Estate Planning ?
4. What Is Included in my Estate?
5. What Is a Will?
6. What Is a Revocable Living Trust?
7. What Is Probate?
8. To Whom Should I Leave My Assets?
9. Whom Should I Name as My Executor or Trustee?
10. How Should I Provide for My Minor Children?
11. When Does Estate Planning Involve Tax Planning?
12. How Does the Way in Which I Hold Title Make a Difference?
13. What Are Other Methods of Leaving Property?
14. What If I Become Unable to Care for Myself ?
15. Who Should Help Me With My Estate Planning Documents?
16. How Do I Find a Qualified Lawyer?
17. Should I Beware of Someone Who Is a "Promoter" of Financial and Estate Planning Services?
18. What Are the Costs Involved In Estate Planning?

If you or a family member fees that a Florida Estate Plan will benefit you please contact a Florida Estate Planning Lawyer.

Leanna Hamill with the Massachusetts Estate Planning and Elder Law Blog wrote an article on Estate Planning titled Should You Discuss Your Plans with Your Children?

In the article she discusses the fact that clients often wonder if they should share their estate plans with their children. In giving her expected advice of IT DEPENDS, Leanna explains some of the reasons why one should and should not disclose their plans. These deal with the way the property is split between the beneficiaries, who will be the PR, Executor, or Trustee, unfit children, issues of disinheritance, and special provisions for one child.

For more insight on these issues read her article or speak with your Florida Estate Planning Lawyer about your particular situation. While you may have not considered the ramifications and ways to approach your specific issues, an Experienced Florida Estate Planning Attorney has.

Wills

•A new Florida will is almost always advisable for the divorced client, especially if there are minor children.

•Florida Statute section 732.507 generally provides that after the dissolution the provisions for the former spouse in the will are treated as if the former spouse died at the time of the dissolution of the marriage.

• A subsequent marriage, birth, adoption, or divorce will not revoke a Florida Will.

•A Major Concern of Most Clients

-Former spouse will be appointed guardian of the property of the deceased client because they are the natural guardian of minor children and have the highest priority for appointment as guardian. The priority can be altered by naming another individual as guardian under a Florida will.

-Consider avoiding a guardianship of the property by having assets for minors held in a Florida trust. Someone other than the former spouse can then be named as trustee.

“Pour Over” Wills and Revocable Trusts

•If the client has established a revocable inter vivos (living) trust and executed a Florida pour over will (a will that distributes the residue to a trust) prior to the dissolution, the former spouse could potentially inherit the entire estate if the former spouse is the beneficiary of the trust. Florida Statute section 732.507 does not have any effect on inter vivos trusts.

•A new or restated Florida trust should be executed to remove provisions for the former spouse for the reasons stated above.

Estate Tax Planning

•If the client has a taxable estate, the fact that they no longer have a spouse could drastically change their estate tax planning due to loss of the marital deduction.

Life Insurance, Deferred Compensation, IRA’s, Annuities

•Beneficiary designations should be reviewed to assure that the former spouse is no longer a beneficiary.

•IRA designations need to be reviewed to make sure the effect of the chosen beneficiaries does not adversely affect one of the beneficiaries because of age, or ineligibility

If you or a member of your family was to have a crisis are you prepared? That is the question you should ask your Florida Estate Planning Lawyer or Attorney on a regular basis. Often we only look at significant events in our lives and do not consider the effects that a significant effect in our parents or children's lives will have upon us.

When you review your Florida Estate Plan you should also review or remind your parents and adult children to review their plans also. There are changes in the laws which may prompt updates to your estate planning techniques. In addition, significant changes in your life including births, deaths, marriages, divorces, and changes in assets should trigger an estate plan review.

Generally when an Florida Estate Planning Attorney creates Florida Estate Planning Documents their duty is over once the documents are prepared. The obligation is up to you to seek a regular review of these documents.

In addition to reviewing the documents you should consider the following:

1) Make sure you know where your parents documents are, and you tell your personal representative and beneficiaries know where the documents are. If you are concerned that the documents may disappear, you may keep them with an attorney. If you keep your documents with a Jacksonville Florida Estate Planning Lawyerr or Jacksonville Florida Probate Lawyer you should tell people who has them.

2)Check to see that the Florida Estate Planning documents are complete and reflect their current family and financial situation.

3)Make sure that the documents reflect your or your parents current mind set. Wills and trusts need to be reviewed for changes in their financial condition as well as the beneficiaries family and financial condition.

4) Make sure all Estate Planning Documents are signed and witnessed as necessary under the current statutes or those in place at the time of execution.

5)Make sure any Florida Durable Power of Attorney documents mention the current Florida Statutes, many durable power of attorney documents are not honored when they do not comply with the Florida Statutes.

6) Make sure your Florida Living Trust or Florida Revocable Trust or any Florida Trusts are funded. That means that the bank accounts, CD accounts, land, and other assets have been transferred to the trusts. Any deeds to this effect should be properly recorded.

If are not funded they will provide none of the expected benefits upon the death of the grantor.
If you have a Florida Durable Power of Attorney and would it reviewed free of charge by a Jacksonville Florida Estate Planning Lawyer use the contact form on this page.

Often Estate Planning clients struggle with their spouse or self over who to pick as an agent to represent them in a Florida Durable Powers of Attorney ( Financial decisions), Florida Living will & Designation of Health Care Surrogate ( Health care decisions) and Revocable Trusts (Financial Management).

Initially clients might thing of using a Co-Agent. This can cause many problems and unforeseen circumstances and must be done with the correct expectations and knowledge of the potential problems. Michael Keenan has an article discussing several of these issues, titled Be Careful With Co-Agents. In summary, before choosing co-agents you should consider whether they get along well with each other, and what to do if they do not in the future.

In addition, what if one lives far away or moves after the documents are created. Some hospitals or financial institutions may require that both act together unless each co-agent has "several powers" or "joint and several powers" This can be difficult and impracticable. You put your financial and health interest at risk due to delay in execution of the documents.

Both Michael Keenan and David Goldman, a Jacksonville Estate Planning Lawyer & Attorney, recommend that unless there are extraordinary situations taking place, the use of co-agents should allow for flexibility and/or the ability for each to act independently.

As a Florida Estate Planning Attorney, I often get involved in planning for Disabled Florida Adults and Children. Often these individuals are receiving government benefits or expect to receive the in the future due to a physical or mental illness or disability. In some cases clients expect their spouse to need these benefits soon. If the individual receives income that is to create or acquires or maintains assets above a certain level, they will be unable to qualify for these government benefits.

Often the solution is to create a Florida Special or Supplemental Needs Trust. This trust can hold assets and income that would typically disqualify an individual. This money can then be used to supplement their lifestyle. The Connecticut Estate Planning Blog has a two part article on this topic and the rules there seem to be very similar to those in Florida. If you have someone in your family who is currently disabled, or you expect to need government benefits in the future, you should discuss this with a Florida Estate Planning Lawyer so that you can determine what the best option for your particular situation is.

Florida Estate Planning Lawyers often tell clients of the many advantages of a Florida trusts. When a client leaves property to heirs in a trust instead of outright, they can control how the property is used. The control can violate public policy or law, but often good estate planning can control the property without risk of having the control stricken. Some of the major advantages are:

1. That a trust can provide a mechanism for better management and investment than the individuals may be capable of on their own.
2. That a trust can prevents the beneficiary(s) from using all of the proceeds quickly, or wasting it on unnecessary items.
3. Than a trust can protect the assets from the claims of creditors.
4. That a trust creates separate property that can be free of claims of a spouse upon divorce or the beneficiary's death.
5. That a trust allows the creator to control the disposition of the property instead of the beneficiary.

If you are interested in preserving your assets, managing their use, avoiding Florida Probate you should talk with a Florida Estate Planning Attorney about setting up a Florida Living Trust or Florida Irrevocable Trust.

In Florida a Successor Trustee is the person or institution named in the Revocable Trust agreement or other trust agreement who will assume control of the trust if the original trustee dies, resigns, or becomes unable or unwilling to act. There can be several layers of back-up trustees that take over in the order you designate. This person is like a backup agent for a power of attorney or Living Will

Florida Spendthrift Trust: A trust established to provide a fund for an individual that includes a provision intended to secure it against that person's lack of caution and protect it against the claims of creditors. A person can typically prevent against their own creditors but they can achieve some asset protection for others they choose to provide for such as children who have a trust but a trustee with discretionary powers whether or not to distribute property.

Legally Incapacitated Person: A person who has been determined by a court as not capable of handling his or her personal and financial affairs.

A Florida Durable Power of Attorney, Florida Trust, Florida Guardianship, Florida Designation of Health Care Surrogate all deal with Legally Incapacitated persons.

One may not be the Personal Representative, Agent, or Trustee if they are Legally Incapacitated.

In Florida Estate Planning, Florida Guardianship Proceedings, and Florida Probate cases it is often necessary to setup a full or plenary guardianship.

Guardian: an adult appointed by a surviving parent in his or her will or by a court, who is responsible for a minor child or legally incapacitated person's personal care and nurturing.

A parent is the natural guardian of their minor child. If a child receives over $15,000 from a probate or settlement that requires court approval, a parent will need to create a Florida Guardianship over the Property of the minor child.

Other times Florida Guardianships are used to try to stop individuals from wasting their assets. Although this was permissible in the past in Florida, the new standard does not take into account the actions of the individual only the mental capacity of the individual and by law must impose the least restrictions on an individual when evaluating their mental and physical capacity.

Often, Florida Estate Planning Techniques such as Florida Revocable Living Trusts, Florida Durable Powers of Attorney, and Florida Designation of health Care Surrogates are used to prevent a guardianship from being imposed on an individual at a later date.

Fiduciary: This refers to a person (or entity) that serves in a representative capacity. Personal representatives, trustees, guardians, conservators, and agents under powers of attorney are all fiduciaries. A fiduciary stands in a position of confidence and trust with respect to each heir, devisee, and/or beneficiary. They are subject to a responsibility to act in the best interests of the person that they are serving on behalf of and can be sued if they act improperly.

A general power of attorney will not be effective when the principal, the one who wrote and signed it, becomes incompetent, but a Florida durable power of attorney will still be valid after a person becomes incompetent or incapacitated.

One of the primary tax purposes of a durable power of attorney is to provide a mechanism for reducing a person's estate by making gifts of his or her assets. A similar objective in a smaller, nontaxable estate may be to make the principal eligible for Medicaid planning or assistance. In either case, it is prudent, and good practice demands, that the attorney at law who drafts the power of attorney includes the power to make gifts.

If the gift-making power is not included, the validity of the gift may be challenged. The IRS has successfully challenged gifts that were made when there was no specific authority in the document.

A power of attorney is not the same as a trust, a will or a living will. But it is a separate legal document that is an important part of a Florida estate plan.

Please make sure when creating Powers of Attorney, trusts, or wills they are setup correctly. Often fill in the blank forms can provide a framework, but they are not able to take into condideration the particulars need of individuals. Its best to have an attorney prepare these documents and have them reviewed yearly by your Florida Estate Planning Attorney for changes in your status, and the law.

For an understanding of Estate Planning you might read an article for some background. Mark A. Cline has written an article about the value of trusts for Megayacht news online where he talks about Trusts not only being for wealthy individuals. I am not sure any people who are not wealthy will be reading Megayacht news, but thought that others might find the article interesting.

He does a good job of explaining the various terms of trusts like the grantor, beneficiary, and trustee. In addition, he makes the point that " these documents (trusts) protect your assets and carry out your wishes in the event that you cannot." Here is the link to the article

For those who like this article you may also want to read his article on Estate Planning (wills, trusts, or both)

A firm in Dallas has created a program to help widows deal with financial planning. They state that the average age of a widow in America is 56 and that offen estate planning was not created to provide for widows as they need. They do a preliminary evaluation and work on restructuring estates to provide the necessary cash flow to last for the remainder of the spouses' lives. See the above link for more details. They may be able to help or refer you to someone in your area who can provide similar services.