Your Florida Estate Planning Attorney Specialists
When you work with a Florida estate planning attorney from Walser & Herman Law Firm, you work with an expert who understands that your estate is a reflection of years of hard work, careful planning, and good decisions. That’s why we dedicate considerable time to design plans that are tailored to meet your unique needs and help ensure a secure future for those closest to you.
Working With Your Boca Raton and Palm Beach Based Estate Planning Attorney:
Our process usually looks something similar to this:
to Discuss Drafts with Client
Vs. Probate Assets
Your will governs only “probate” assets, which are assets owned in your sole individual name, with no designated beneficiary. You might have other assets that will pass at your death by other means. Some ways by which non-probate assets can pass at death include:
- If assets are held in trust, the trust’s terms will govern their disposition;
- Retirement plans and insurance policies will be governed by the appropriate beneficiary designation; and,
- Real estate can be co-owned as joint tenants with rights of survivorship.
You and your spouse should discuss how you want assets to pass to the surviving spouse at the death of the first-to-die. This issue can arise in two very different contexts. First, if your estate plan creates a Credit Shelter Trust (sometimes called a Bypass Trust or a Family Trust), then you may want the surviving spouse to be a permissible beneficiary of that trust. However, the surviving spouse cannot have too much benefit/control, or else that would negate the estate tax planning for such a trust.
Second, assets other than those funding the family trust usually pass to the surviving spouse, either outright or in a marital trust. A marital trust can give added control, professional management of assets, and protection from creditors, while still preserving certain estate tax savings. If a marital trust is used, consider how you want distributions to be made for the benefit of the surviving spouse. Many trusts for the surviving spouse allow liberal distributions for such needs as medical support, living expenses, and general welfare. To qualify for the estate marital deduction, trusts for a surviving spouse generally must at least distribute the trust income to the surviving spouse at least annually.
Other Family Members
Consider how you wish your assets to be distributed to other family members, such as children, step-children and parents. For example, if a trust is used for children, consider the desired timing of distributions. It may be best to allow wealth to be used by the family as needed, while also protecting and preserving this wealth for several generations by minimizing taxes and protecting the assets from family creditors (which can include a future divorcing spouse). For these reasons our Boca Raton and Palm Beach estate planning attorneys feel that it might be advisable to have trusts continue until a beneficiary reaches a certain age or possibly even for the beneficiary’s lifetime.
If you want assets to stay in trust, under what circumstances should periodic distributions be made to your descendants? Many trusts for descendants contain restrictions, limiting distributions for such needs as medical support, education, and living expenses to maintain a beneficiary’s accustomed lifestyle. Some also contain provisions to allow descendants to enter a profession, start a business, purchase a home and/or help toward a wedding. You can also empower the trustee to make discretionary distributions, which can have the benefit of allowing more flexibility to address future circumstances. However, granting more discretion to the trustee must be balanced against your desire to maintain some control over when distributions are to be made.
Widow/Widower Estate Planning
If you have lost a spouse, your world has changed dramatically. With all the changes in your life, it is important to remember that you need to re-examine and update your estate plan.
Consider the following steps:
- Take inventory of your assets. You should inventory your assets and determine how they are owned. There are certain assets that you may want to change how they are owned such as those that were owned jointly with your spouse. You may need to change the title to be in your name only or in the name of your trust. If you inherited assets from your spouse in trust, you will want to protect them from creditors by keeping them in trust. You should consult with your estate planning attorney on changes in tax basis for assets you held with your spouse.
- Update your estate plan. Many times, the death of a spouse results in dramatic changes in your finances, which may require your estate plan to be changed. You should also review to determine whether you named your spouse as trustee, executor or power of attorney. If so, you should appoint a new person. Additionally, if you remarry, you should update your estate plan to reflect how you want your new spouse and your children to inherit from you.
- Protect your wealth. Even though you may have inherited a certain amount of wealth from your spouse, it is important to protect your finances. It is typically not a good idea to lend money to new love interests or friends, because there are many scam artists who target lonely individuals. You and your spouse worked hard to accumulate your savings, so safeguard your future by conferring with a seasoned Boca Raton or North Palm Beach estate planning attorney who will help ensure your best interests are protected. If you consider remarriage, only do so with a premarital agreement in place. This can avoid a lot of grief for you and your family.
Distribution To Special Needs Family Members
The parents of a special needs child are faced with five unique estate planning challenges:
- Providing for all of their loved ones without jeopardizing the special needs child’s eligibility for means-tested government benefits such as Supplemental Security Income (SSI) and Medicaid;
- Designing an estate plan that supplements the special needs child’s means-tested government benefits and enhances the quality of the child’s life;
- Treating the other children equitably while providing for the special needs child;
- Ensuring sufficient funds are available at a parent’s death to care for the child; and,
- Providing for the proper supervision, management, and distribution of an inheritance for the special needs child through a third-party created and funded special needs trust (SNT).
Of these five unique estate planning challenges, items number four and five typically prove to be the most difficult to implement. This is especially true if most of the parents’ estate is composed of retirement benefits, there is no trustee in the parents’ special needs child’s vicinity who is experienced in administering special needs trusts, or if there is an experienced trustee available but its minimum fee is too high relative to the proposed size of the Special Needs Trust.
At a minimum, the parents should have the following five estate planning documents prepared:
- Last Will and Testament;
- General Durable Power of Attorney for financial affairs that permits the agent to make discretionary nonsupport distributions to or for the benefit of the child and to establish a third-party created and funded Special Needs Trust for the benefit of the child;
- Durable Medical Power of Attorney;
- Revocable Living Trust containing language permitting the trustee to make discretionary nonsupport distributions to or for the child’s benefit; and,
- Third-party created and funded Special Needs Trust.
Durable Power Of Attorney
A durable power of attorney is a legal document that empowers your designee to handle your affairs in the event you become incapacitated. You and your spouse should each appoint a primary and alternate individual (often called either an “agent” or an “attorney-in-fact”) who will be responsible for making decisions for you and executing necessary documents in the event you or your spouse becomes unable to do so.
Often, spouses name each other as their agent and often name an adult child as the alternate. However, there is no requirement that you name your spouse. If someone else, such as an adult child, would be in a better position to handle your affairs, which is fine too.
There is also no requirement that you name only one attorney-in-fact for all of your affairs. If there are particular assets (e.g., closely held stock) that would be more appropriately handled by a particular person, you can have more than one power of attorney to accomplish that by appointing what is referred to as a Limited Power of Attorney.
In Florida, as of October 1, 2011, it is recommended that existing power of attorneys be updated to utilize a new and improved form. The updated form requires the designator to specifically designate which powers are to be granted to the designee. Older versions of the power of attorney are still legally valid, but most banks and other financial institutions will not accept the older versions.
Health Care Surrogate, A Living Will
You and your spouse should each appoint a primary and alternate individual who will be responsible for making health care decisions in the event you or your spouse is unable to do so. A health care surrogate authorizes your designee to make these decisions for you. This power would not permit your designee to override your own decisions; it would merely permit decision-making where you have not previously made your wishes clear. A living will appoints an agent and directs that medical intervention, except to keep you comfortable, be withdrawn if your death is imminent.
Often, spouses name each other as their health care surrogate and often name an adult child as the alternate.
HIPAA Release & Authorization
HIPAA is the Health Insurance Portability and Accountability Act, a Federal law that requires health providers to take certain steps to protect the privacy and security of patient health information. Florida hospitals believe your health information is personal and confidential. The privacy part of the law went into effect on April 14, 2003 and requires Florida residents to sign a HIPAA disclaimer form, authorizing their loved ones or family members’ access to any and all medical information available in regards to the designator.
Don’t Delay Your Estate Planning
Walser & Herman Law Firm helps you create an effective long-term care plan. Call our Boca Raton main office or our Palm Beach office location at 561.750.1040 or email us to schedule an appointment with our estate and care planning lawyers.
Our experienced team of attorneys is here to help you navigate your estate plan and the Florida probate process.