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Estate Planning Attorney

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Estate Planning Attorney Daytona Beach

Estate planning is not a one-time event: It’s an evolving, ongoing process that addresses your future needs. With the guidance of a Florida probate attorney, an estate plan helps you protect your assets and determine how they will be distributed or managed should you become unable to oversee the management of your personal affairs.

Estate planning is much more than writing a will. Your estate plan should also include documents that establish your health care power of attorney, durable power of attorney, and living will. These documents, along with a simple will, comprise an effective estate plan for most individuals. More complex estate plans, however, may involve business planning, tax planning, and a host of other strategies. To learn more about an estate plan that may be right for your needs, schedule a consultation with estate planning attorney Thomas Upchurch.

Benefits of an Estate Plan.

It’s a common misconception that estate planning is only for those with a high net worth or income, or people approaching retirement. Every adult, at every stage of life, can benefit from having an estate plan in place, regardless of their age or marital status, whether they have children, or the total value of their assets. Keep in mind that the equity in your home or the balance in your 401(k) account are assets that should be protected, and that not all aspects of an estate plan are strictly financial.

An effective estate plan can help you in these areas and more:

  • Determine who will manage your affairs if you become incapacitated during your lifetime
  • Provide specific instructions on how you want your affairs managed should you become incapacitated
  • Provide instructions on how you want your assets distributed upon your passing
  • Direct when and if you ever want your assets distributed during your lifetime
  • Determine who will make healthcare decisions on your behalf if you become incapacitated, and provide instructions on whether you want life-prolonging measures to be taken and, if so, under what specific circumstances

Estate Planning FAQ.

These are just some of the frequently asked questions we hear about estate planning. If you have questions that aren’t answered here, please don’t hesitate to contact Upchurch Law or call at 386-320-6169.

A: All of the property you control or own—or that may be generated upon your death, such as life insurance— is your estate. You may be the sole owner of this property, or share ownership. Your estate includes these items and more:
  • Real property, such as houses and buildings
  • Personal property, such as cars, stocks and bonds, bank accounts, mutual funds, cash, jewelry and furniture
  • Life insurance, IRAs, pension benefits, and obligations or debts owed
  • Businesses and business interests
A: In addition to the benefits outlined above, an estate plan gives you control over how your assets will be managed after your death and ensures your end-of-life wishes are carried out. Without a will or other estate documents, any decisions will be dictated by Florida law, which may or may not be in line with what you would have wanted if you’d had a say in your affairs. Another important reason to have a will and estate plan is that it relieves family members of having to make decisions and minimizes conflict over your estate.
A: In short, yes, and there are plenty of software and online options to do so. But there are a number of excellent reasons why you should work with an experienced estate planning and probate attorney. A will that’s incorrectly written or improperly executed may be found to be invalid, and the rules that govern the drafting of wills varies from state to state. It’s very easy to make errors while preparing your own will, and some of them can have significant effects later on. It’s also easy to overlook the inclusion of some assets or omit clear instructions on how your estate should be administered. It’s also very important to have an estate planning lawyer work with you to draft a will that will withstand the probate process and accurately reflect all of your wishes
A: In order to change your will, you will need to execute an amendment or execute a new will. In either instance, the guidance of an estate planning lawyer is essential. An amendment, or codicil, must make proper reference to your existing will that remains in effect, and must be signed in the presence of witnesses and be notarized. A new will should include language that makes it clear that you are revoking your previous will. A qualified attorney will ensure that either a codicil or new will is properly prepared and valid.
A: When a testator dies, his or her will must be submitted to a probate court for execution. This is the legal process that carries out the administration of your estate and is overseen by a probate judge. The judge determines whether the will meets the requirements of Florida law. If there is no valid will at the time of the testator’s death, the legal process of administering and closing out his or her estate is still governed by the probate judge. The probate process can be complicated, so it’s best to have an estate planning and probate attorney assist you in identifying estate assets, working with creditors, and managing the distribution of your assets to your beneficiaries.
A: There is often confusion surrounding the meaning of the term “living will.” Unlike a traditional will that sets out instructions for how your assets will be distributed after your death, a living will goes into effect while you are still living. A living will gives you the opportunity to provide specific instructions, in advance, for your end-of-life medical care, including whether you wish to be kept alive by life-support apparatus and/or want other measures taken to prolong your life. Because a person cannot know when he or she may be incapacitated and unable to express such wishes, it’s important to have proper documentation that makes those wishes clear.
A: This is a legal document that allows you to delegate authority to another person, with the definition of that authority spelled out in the document. A power of attorney may grant another person the right to sell a property, access financial accounts, sign legal documents, or other such “powers.” A power of attorney is a very important document and is subject to complex laws and regulations, so it should be drawn by an experienced attorney.
A: In the simplest terms, a person is said to die testate when he or she has a valid will in effect at the time of death, and intestate when there is no valid will. The laws of “intestate succession” dictate that the legal system will determine how your estate is distributed. If you die intestate—or if your will is not properly prepared and therefore invalid—you will have had no influence on or control over who receives assets from your estate. Having a will prepared by an experienced estate attorney is the best strategy for ensuring your estate is distributed according to your wishes.
A: The government levies taxes on the estate of a deceased person, but Florida does not have an estate tax (or an inheritance tax). If you inherit property from someone in a state that does have an inheritance tax, however, you may be taxed. There may also be federal estate taxes that apply to your unique situation, so you should consult an estate planning attorney for more information about state and federal estate and inheritance taxes.
A: Ideally, you should meet with your estate planning attorney every few years to keep your will current and make sure it stays in compliance with any changing Florida laws. You should at least update your will whenever you experience a significant change in your life, such as marrying, divorcing, or having a child.

How an Estate Planning Lawyer Can Help You.

Whether you are just beginning to consider estate planning or have a comprehensive estate plan that needs to be updated, an estate planning attorney can help ensure that your assets will be protected and that your affairs will be managed according to your wishes after you pass. He or she will help you understand all of your options and prepare all of the documentation necessary to properly plan your personal legacy.

At Upchurch Law, attorney Thomas Upchurch provides expert estate planning legal services and can assist you with even the most complex estate matters. If you have questions about how best to protect your interests and those of your loved ones in the future, we invite you to schedule a consultation to review your estate planning needs.

Thomas Upchurch serves the entire Central and North Florida Areas including Daytona Beach , Port Orange , Deland , Ormond Beach , Jacksonville , Palm Coast , Orlando , Saint Augustine and New Smyrna Beach


Related Estate Planning Information:

1. Determine whether you need an estate plan.

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.

2. Speak with an experienced local estate planning attorney, and any other professionals whose input you need.

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.

3. Assess the need for estate planning documents to protect you and your family during your lifetime.

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.

a. Powers of attorney

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.

b. Appointment of a health care surrogate and advance directives

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.

c. Appointment of a guardian for minor children

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.

d. Ensure that your business interests are protected

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.

e. Medicaid and other asset protection planning

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.

4. Assess your property, beneficiaries, and goals for transfers on death.

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.

a. Inventory your assets

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.

b. Meet with an experience estate planning attorney and any other professionals required

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.

c. Determine whether a will, a living trust, or a combination of these two tools is the best way to pass of the bulk of your estate.

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.

d. Review how your assets are currently titled and any direct beneficiaries

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.

e. Determine who you want to benefit from your estate and how

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.

f. Consider tax consequences

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.

5. Build in a Review Process

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.

Start the Estate Planning Process Right Now

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.