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Written by Thomas Upchurch
The first step in the Florida estate planning process—determining whether you need an estate plan–is the quickest and easiest. If you are an adult and not mentally incapacitated, the answer is “yes.”
Often people believe that they do not yet need an estate plan because they are young and healthy, because they have few assets, or because they have no dependents. As you proceed through the checklist, you will see that even young, single adults with relatively few assets do themselves and their loved ones a significant disservice by neglecting estate planning.
Making an effective estate plan is far more complicated than just filling out a will form. You must first take inventory of your assets and obligations, assess your goals, and determine the approach that best suits your circumstances.
Achieving your goals and avoiding unintended consequences requires extensive knowledge of estate planning tools, Florida estate planning law, the tax consequences of various actions, and even issues you might never have considered, such as planning ahead for nursing home care or to provide for a disabled loved one after your death.
The earlier in the process you get assistance from knowledgeable professionals who can guide you through the assessment and decision making process the more effective your estate planning can be. In addition to an experienced estate lawyer, some examples may include a financial planner, a tax adviser, or an accountant.
When most people think about estate planning, they think about wills, trusts and other methods of providing for their spouses, children, and other loved ones after they pass away. However, some of the most important elements of estate planning are designed to protect you, your assets, and your family during your lifetime.
Many people without significant assets don’t even consider the need to grant power of attorney to a trusted friend or family member. However, if you should become incapacitated, lack of preparation can have serious consequences.
Imagine, for example, that you are a single person living in a condominium with a mortgage. You suffer an incapacitating injury that renders you temporarily or permanently unable to manage your own affairs.
If you want to avoid foreclosure, your mortgage payments must continue. But, if you haven’t created an effective power of attorney or made other arrangements, it’s likely that no one in your life will have the authority to access your bank account to pay your mortgage. If the incapacity is long term or permanent, it may be necessary to sell your condominium. But, again, you are likely the only person with the legal authority to do so. Of course, this is just one of many areas in which your loved ones’ hands may be tied while you are unable to tend to your own affairs.
While a court may appoint somebody to act on your behalf, there are consequences to consider. First and most obviously, the person a court chooses to make decisions and conduct business on your behalf may not be the person you would have chosen. And, since you didn’t choose that person and speak with him or her in advance, the person the court chooses may be entirely unaware of your preferences and priorities.
The second pitfall is timing. Sometimes, time is of the essence. When critical decisions need to be made quickly, the last thing you want is for those closest to you to have to scramble to find legal assistance and petition a court before they can act.
Similarly, you will want someone whose motives and judgment you trust making medical decisions on your behalf if you are unable to make those decisions yourself. Designating a health care surrogate allows you to choose that person in advance, and to make sure he or she understands your wishes.
A second tool, known as an advance healthcare directive, allows you to provide certain advance instructions to healthcare providers. The most common of these involves the circumstances under which you do and do not want extraordinary measures to sustain life. Typically, these two documents work in tandem, since it is impossible to anticipate and address every possible health care decision in advance.
People generally think in terms of appointing a guardian to care for their children if they pass away while the children are minors. Many parents never take this important step, in part because they are relatively young and healthy and do not anticipate dying before their children reached the age of majority, and in part because it is an emotionally difficult decision to.
However, guardianship appointments are not only necessary to protect your children in case of your untimely death. The appointment of a guardian Is equally important if you should find yourself temporarily or permanently incapacitated as discussed above.
Failure to make such an appointment in advance can cause family conflict, increase stress, and leave your children in an unstable situation during an already very difficult time. No one is better qualified than you to determine who is best equipped to provide the practical and emotional support that your children need in the short or long term, so you shouldn’t miss this opportunity to make the decision and ensure that they will have as much stability as possible in a crisis.
A power of attorney and a conversation with the person you’ve entrusted your affairs to will generally suffice for run-of-the-mill matters like keeping the bills paid, transferring property, and keeping your insurance up to date. But, if you own and operate a business, the issues may be more complex, and those closest to you may not have the expertise required to keep your business running or to wind it down in the most cost-effective manner.
If you are a business owner, make sure that you specifically consider the issues that would arise in your absence and ensure that you make provision, whether that means an operating agreement that allows another member of your LLC to assume your responsibilities, a buy-sell agreement that will allow partners to buy you out if you are incapacitated in the long-term, or trusted experts your loved one’s can rely on for guidance if you’re not available to do the job.
One of the most commonly overlooked aspects of estate planning is preparation for the possibility of long-term care. But, more than 70,000 Floridians currently reside in nursing homes, at an average cost of more than $80,000 per year. In other words, most people can’t afford to pay for long-term residential care directly.
Of course, no one wants to wipe out his or her assets paying for long-term care, only to end up reliant on Medicaid when those assets are exhausted. With advance planning, many assets can be protected. But, by the time nursing home care is required, it may be too late to take full advantage of your legal options.
You know by now that transferring assets after death is just one piece of estate planning. But, it’s a critical piece. Failure to plan can have serious consequences, including property passing to someone other than you would have intended, family conflict, draining of your estate through infighting, and even assets slipping through the cracks and never passing to your heirs and beneficiaries.
This first step in planning to transfer your assets after your death may seem obvious, but in fact it is one that is often overlooked or conducted carelessly. A thorough inventory of your estate is critical, and involves assets you may never have considered. For example, many people overlook personal items without financial value, such as family photos, or digital assets.
If you’re planning to leave your entire estate to a single person, such as your spouse or only child, you may think that an inventory is not necessary. But, the process may not be as simple as you assume. There may be legal limitations on the transfer of certain types of property, there may be listed beneficiaries or other property owners with rights of survivorship on some property, and there may be specific considerations such as tax consequences based on the way that you transfer the property.
Further, your personal representative can’t take possession of and transfer property to your heirs and beneficiaries unless he or she knows it exists and how to access it. Taking inventory of your estate is an important step that deserves careful attention. Your estate attorney can help ensure that your inventory is complete by asking questions and pointing out commonly-overlooked assets.
This step and its importance was addressed in the lifetime planning section. It is equally important to consult relevant professionals as you make decisions about the right estate planning tools for you, the best way to pass certain types of property, and how best to preserve your estate for the benefit of your loved ones.
Many people default to a will, simply because it is the best-known and longest-standing means of passing property from one generation to the next under our legal system. However, the best approach for you depends on a variety of factors, including the type of property that you are passing your beneficiaries and the age and circumstances of your beneficiaries, and your personal priorities.
For most people, there are pros and cons to each approach. For example, a will typically requires less up-front investment from the testator, and requires little maintenance activity during his or her lifetime. However, the probate process can be time consuming and costly for those left behind. A living trust requires more effort on the part of the original owner of the assets, but the transition is smoother and administration typically less expensive after death. In addition, a living trust is typically private, whereas a will submitted to probate becomes a matter of public record.
An experienced Florida estate attorney can help you determine which approach will best serve your specific goals and circumstances.
You’ll need to ensure that your estate planning documents don’t contradict one another. One common example involves including a retirement account in a will, although there is already a direct beneficiary listed on the account. Similarly, you cannot effectively bequeath property to an heir or beneficiary if you hold that property jointly with another person who has rights of survivorship.
Once you have determined the best way to pass property, review the current beneficiary listings and titles to property to ensure that they are consistent with your current estate plan, and promptly correct any inconsistencies.
It may seem that this item should appear much earlier on the checklist and, in fact, you will likely have a good idea of who your beneficiaries are before you ever meet with your estate planning attorney. Other decisions, such as whether you want to include charitable donations in your estate planning and whether to leave specific bequests for your children or pass everything to your spouse and assume it will pass on to your children when he or she passes away, will be likely be made in consultation with your attorney and/or financial advisor.
But, identifying beneficiaries is only the beginning. Not all beneficiaries are similarly situated, so you must also decide how you want your assets to be divided, and whether you want to pass assets directly or create some limitations on their distribution. For example, if one of your adult children is deeply in debt, you may not wish to pass money or property directly to him, since it could be seized by creditors.
Tax considerations may impact everything from the type of estate planning documents you choose to whether you should gift property to your loved ones during your lifetime rather than transferring your full estate on death.
Although the state of Florida does not have either estate tax or inheritance tax, a large estate may be taxable by the federal government. There are more complex tax considerations as well. For example, how and to what extent retirement account funds are taxed may vary depending on the person to whom they are transferred and how that transfer takes place. Tax considerations may also play a significant role in determinations about how to pass your personal residence, whether to make charitable contributions through your will or trust, and how to structure those gifts.
No matter how carefully you attend to estate planning, it’s not a one-time process. If you’re using a living trust, you’ll have to transfer new property into that trust as you acquire it, or it will be left to pass through the probate process. Family changes, such as marriage, divorce, death of a beneficiary, incapacity of a personal representative, or the birth of a child may necessitate changes.
When you create your estate plan, talk with your attorney about the types of events that should trigger review, and how often you should take inventory to ensure that your estate planning documents are up to date and reflect your current wishes.
Far too many people believe they have plenty of time to think about estate planning. Many are right, but life is uncertain, and that leaves many families scrambling in the aftermath of an incapacitating event or unexpected death. Talk to an experienced estate planning attorney today and take the first step toward giving yourself and your family the peace of mind that comes with preparation.