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Estate
Planning

WHAT DO I NEED?

I JUST BECAME A FLORIDA RESIDENT, DO I NEED TO REDO MY ESTATE PLANNING?

You may not need to redo it completely, but it is important to have your current out of state plan reviewed by a Florida attorney and at least amend it so that it states you are a Florida resident and it is governed under Florida law.  Florida State Laws regarding the execution of wills and trusts may differ from the state where your estate plan was drafted, which could create excess costs and complications in probating it in Florida if it is not amended before you pass, so it's a good idea to make sure the execution complies with Florida law.

In addition, Florida does not have an estate tax.  As a result, you may be able to make your current plan a lot less complicated and compliant with your wishes, and not be forced into a planning structure to avoid state estate tax.  Furthermore, the documents (described below) like Power of Attorneys, Health Care Surrogates, and Living Wills all differ in form and requirements from state to state.  For all these reasons, and many more, it's a good idea to have your current plan removed and get a recommendation as to whether any changes are needed or advisable.  I try to use your current plan as much as possible to make it as efficient and economical as possible. 

DO I NEED A WILL?

The Florida Statutes lay out who receives your assets if you do not have a Will, however, those people may not be the people you would like to leave your estate to.  A Will gives you the power to decide what happens to your assets after death and who is in charge of taking care of your estate and distributing your assets according to your wishes.

DO I NEED A DESIGNATION OF HEALTH CARE SURROGATE?

A Designation of Health Care Surrogate lets you appoint who you would like to make your medical decisions if you are not able to.  Your Health Care Surrogate can consent to procedures, agree to treatment, and most importantly, speak with and receive information from your doctors.  Valuable time can be lost if you do not designate ahead of time who should be making your decisions if you are unconscious or unable to consent.

DO I NEED A DURABLE POWER OF ATTORNEY?

A Durable Power of Attorney is a document that can only be used during your life and it goes into effect immediately (unlike the Designation of Health Care Surrogate, which is only used when or if you are not able to make your own decisions).  It gives your appointed representative the full authority to step into your shoes and access your bank account, buy or sell property, pay bills, vote stock, and make gifts, among other powers.  It is a useful document and in the case of incapacity, it is necessary in order to avoid a court appointed Guardian and an expensive and intrusive Guardianship.  It is important to pick a trusted person and keep the document safe until it is needed.

DO I NEED A TRUST?

Maybe.  A Trust is not always necessary, but it is useful for fulfilling several goals, including further controlling the distribution of your assets, leaving gifts to minors or disabled love ones, avoiding probate, organizing assets, and in many cases, protecting your assets.  I discuss each individual client's unique situation with them to determine what type of trust is ideal, if any, to meet that client's goals and situation.

WHAT TYPE OF TRUST DO I NEED?

ANSWER: DEPENDS ON YOUR GOALS AND SITUATION

EXAMPLE 1:  I'd like to get my assets organized and help my heirs avoid probate

 

A Revocable Living Trust is often used in this situation and gives you, as Trustee, full power and authority over your assets during life, but if properly drafted and funded, makes things so much easier on your heirs after death.  They will be able to avoid probate and distribute assets according to your wishes immediately, instead of waiting and working through the probate process.

EXAMPLE 2:  I'd like to make sure my son/daughter, who is not very wise with his/her money, is taken care of after I am gone or I would like to leave assets to minor children

A Revocable Trust can be used to distribute your assets over time to an heir your are afraid will spend a lump sum gift unwisely.  For example, 10% a year over a period of 10 years, or different percentages distributed at different milestones.    

A minor cannot inherit property outright, so a trust is necessary to hold and manage the assets you leave to the minor until they at least reach 18.  You can direct the trustee to pay for their education, or other important needs and then distribute the balance at a certain age you determine to be advisable.

EXAMPLE 3: I'm concerned about Federal Estate Taxes because I and/or my spouse have more than the exempt amount or are close to the exempt amount

The Federal Estate Tax exemption for 2020 is $11,580,000.00 per person or $23,160,000.00 per couple.  If you have over or around these assets, there are several specialized Trusts that can reduce or eliminate Estate Tax including Irrevocable Life Insurance Trusts, Qualified Personal Residence Trusts, or Charitable Lead or Remainder Trusts.

EXAMPLE 4: I would like to protect my assets as much as I can if I should need to go into a long term care facility or receive long term home care

This is a big concern addressed in Elder Law.  Each client's situation is evaluated and if Medicaid or Veteran's Association Benefits are a possibility, I can advise as to options to protect and maximize your assets through the use of specialized trusts like a Special Needs Trust or Irrevocable Gift Trust.

IF YOU ARE INTERESTED IN ESTATE PLANNING FOR ANY OF THE ABOVE REASONS, PLEASE CALL (239) 610-1101 TO SCHEDULE AN APPOINTMENT WITH JENNIFER M. TENNEY, ESQ.

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