Estate Planning is the process of planning the transfer of your personal assets at death to your beneficiaries. We will help you plan your estate in a manner that meets your goals, whether drafting a Last Will and Testament or a Revocable Living Trust. We are sensitive to the personal nature of estate planning and will address your unique needs. In addition, we will create Durable Power of Attorneys with health care surrogate provisions to ensure that in the event you become incapacitated, you have appointed someone to make financial and medical decisions for you.
Living Wills are also important to include in your estate plan. Living Wills give specific instructions to your doctors and loved ones concerning the withholding of life-prolonging treatment in the event you are diagnosed with a terminal condition. Many people believe that estate planning is only for people who are particularly wealthy, have elaborate schemes in mind for passing their money to their heirs, or for people who are acutely ill and contemplating their death. However, this is simply inaccurate. Persons who fail to plan during their lives and die without creating a will ‘die intestate’. Meaning, if you die intestate, your property will be distributed in a manner in which you may have no control. Property may go to people you do not want and in ways that you never intended. Dying intestate means no tax planning was done on your behalf.
Estate planning is for every husband, wife, mother, father, grandparent, business owner, professional, or anyone else who has someone they care about, are concerned about providing responsibly for their own well being and for the well being of those they love, and for anyone who seeks to make a difference in the lives of others after they’re gone. Hence, estate planning is life planning. It is an essential and rewarding process for individuals and families who engage in it. When done properly, estate planning requires that a highly trained individual lead you through one or more in-depth meetings to uncover your hopes, fears, and expectations for yourself and for those who are most important to you. This process almost always requires the preparation of several sophisticated legal documents, but those documents themselves are not estate planning.
Your estate plan is a snapshot of you, your family, your assets and the tax laws in effect at the time it was created. All of these change over time, and so your plan should evolve with the changes in your life. It is unreasonable to expect the simple will written when you were a newlywed to be effective now that you have a growing family, or now that you are divorced from your spouse, or when you retire and have an ever increasing number of grandchildren. Over the course of your lifetime, your estate plan will need check-ups, maintenance, changes, maybe even replacing. So, how do you know when it’s time to give your estate plan a check-up?Generally, any change in your personal, family, financial or health situation, or a change in the tax laws, could prompt a change in your estate plan.
Planning is a process, represented by a complete strategy that is properly formulated, documented and maintained by a professional who has taken the time to get to know you, and who is committed to continuing to serve you. That's where our services come into the picture. Please call us today at (239) 823-4541 for a complimentary estate planning consultation.
A will or a last will and testament is a legal document that tells the probate court how you want your property distributed after you die, and who has the power and responsibility to handle your affairs. Through the probate process, the court will give the executor of your will the authority to gather all of your property, pay any remaining creditors’ bills, and distribute your remaining property as you specify in your will. Because the will takes effect only after a court determined that it is a valid document, a judge must act before your executor can step in and manage your estate.
Perhaps the most common type of trust is the revocable living trust. As the name implies, revocable trusts are fully revocable at the request of the trust maker. Thus, assets transferred to a revocable trust remain within the control of the trust maker; the trust maker(s) can simply revoke the trust and have the assets returned. Revocable trusts can be excellent vehicles for disability planning, privacy, and probate avoidance.
Revocable living trust based estate plan provides instructions that will allow you to:
Any property you fail to transfer to your living trust during your life will be transferred to your trust through the probate process; in order to avoid this, a pour-over will may be created, which contains a safety net provision. It will transfer all non-trust assets to your trust that are not controlled by beneficiary designations or by ownership with a joint tenant. Your goal is to avoid probate by ensuring that your pour-over will controls nothing. You must transfer all your assets to your trust during your life to avoid probate. Your will is merely your backup to ensure that all your assets are ultimately controlled by your living trust. Who will make decisions for you if you are unable to make them for yourself? Who will have the power to sign documents on your behalf, or make sure your bills get paid?
Durable Power of Attorney:
Without a durable power of attorney, someone who is mentally incapacitated must be taken to guardianship or conservatorship court to have the judge assign a decision maker for them. A carefully written durable power of attorney will allow you to name someone you trust to make decisions for you if you become disabled to the point of no longer being able to make those decisions yourself.
A living will or directive to physicians directly informs your doctors that you do not want extraordinary medical measures taken, especially those that would cause you pain or discomfort, if those measures would only prolong the dying process. This document backs up your health care power of attorney. Anyone can deliver this document to your doctors if your agent under your health care power of attorney is unavailable to make health care decisions for you.
A healthcare power of attorney allows your trusted friend or family member to make medical treatment decisions for you if you are unable to communicate your wishes to doctors. Without one, you must have a guardian or conservator appointed by the court before decisions can be made on your behalf. A healthcare power of attorney not only saves precious decision making time, but it also makes sure that the individual you trust the most has the power to make these most important decisions for you if you are unable to make the decisions on your own.
A Durable Power of Attorney and Health Care Power of Attorney should contain HIPAA Authorization provisions to ensure that your named decision maker is able to access your private information. The Health Insurance Portability and Accountability Act of 1996 (HIPAA), absent a written authorization from the patient, a health care provider or health care clearinghouse cannot disclose medical information to anyone other than the patient or the person appointed under state law to make health care decisions for the patient. The Regulations promulgated under HIPAA specifically authorize a HIPAA Authorization for release of this information to persons other than you or your personal representative. Thus, you should consider creating such an Authorization so that loved ones and others can access this information in addition to the personal representative.Consider acquiring a HIPAA Authorization for loved ones and others who potentially need access to your medical information if you become disabled. We can certainly help you with this step in the estate planning process, so please give us a call today.
You can protect your assets from lawsuits through asset protection planning, in which you take assets that are subject to creditors' claims, called nonexempt assets, and reposition them as assets that are out of the reach of creditors' claims, called exempt assets. One option is holding the property in a separate, discretionary lifetime trust for each beneficiary, creating a legal barrier between the property held in the trust and the beneficiary's creditors or a divorcing spouse.
The following resources are available for you to review. Please click on the links to take you directly to the organization and/or documents.