Estate Planning
During your lifetime, you will own assets. When you die, your “estate” will include everything you own. This could mean the obvious tangible things such as a home, car, bank accounts, retirement accounts, collections, and intangible items such as digital assets or intellectual property.
Estate planning is the process of deciding what to do with your assets upon death. It usually includes a comprehensive package of documents that have been prepared based upon your individual estate plan purpose. The documents are designed for protection of you, your loved ones, and family. These documents typically could include a Living Will, Revocable Trust, Power of Attorney, Healthcare Surrogate, or other legal document like for Final Arrangements.
Estate planning not only provides the ability to direct how property will be distributed after your death but it also affords the opportunity to decide how assets will be managed if you become incapacitated or for whatever reason are unable to do so yourself. By way of example, if you die without a will, the State will decide on someone to administer your estate. This single decision could result in additional expenses charged against your estate property.
We strongly recommend consulting an attorney that practices estate planning for the drafting and review of these legal documents such as a Will. We would caution you on using “Will Kits” or online document preparation companies. First, they are not able to provide legal advice. Only an attorney could provide legal advice. Wills are governed by state law, which often changes. Most of the online document preparation Wills are drafted to be generally used in multiples states. The execution of a Will in Florida or Texas, for example, is specific for its validity. If a Will is not properly executed in Florida, it will have the same effect as not having a Will according to the Florida Probate Court.
Trusts
As mentioned, trusts may be a part of an estate plan. A Living Trust, for example, is a legal entity arrangement in which a party (e.g., a settler, granter, or donor) transfers property to a trustee to manage the property to benefit the beneficiaries. A Living Trust may help avoid not only probate, but also guardianship in situations where the granter can no longer manage affairs. In cases of Revocable Living Trusts, the settler is allowed to retain control over the property during the settler’s lifetime.
Guardianship
Guardianship is a court process that can remove the rights of an incapacitated person and then transfer those rights to another individual who can make decisions for the incapacitated person. It is important to note that Guardianship can be avoided in a situation where an individual can understand and sign incapacity documents before complete incapacitation.
What if my family member is already incapacitated? At this point, using incapacity documents would not be an option. However, the Guardianship process would be. This is conducted in two steps. The first step determines the level of capacity, and this is initiated with a “Petition to determine incapacity.” Within five (5) days of the petition, the court will appoint an examining committee consisting of three members to interview the person believed to be incapacitated. Step two establishes whether a Guardian is qualified to serve. This is determined based on the Guardianship application and other requirements such as a hearing. Letters of Guardianship are issued once Guardianship is established, and these empower the Guardian to make decisions for the incapacitated person.
Special Needs Trust
A Special Needs Trust or Supplemental Needs Trust is created to preserve eligibility for government benefits on behalf of a person with special needs while at the same time preserving their assets. Funds placed in the Trust are used to supplement and not replace government benefits. The Trust could be funded from a variety of sources, including an inheritance or injury settlement.
Special Needs Trusts can be an integral part of Estate Planning. For example, if a person who is otherwise eligible to receive government benefits or may need to qualify at some point in the future accepts or receives funds from an inheritance or settlement, it may cause ineligibility. However, by funding the Special Needs Trust with the inheritance or settlement and naming a Trustee, the funds do not count as an asset even though the special needs person is a beneficiary of the Trust.
Medicaid
Medicaid is a program providing benefits to senior or disabled individuals who may need skilled nursing care. Assets and income determine eligibility for Medicaid.
Eligibility for Medicaid factors in maximum asset levels, maximum income levels, and a look back period of five (5) years regarding what the person owns and owns. In the State of Florida, the application process is typically submitted to the Florida Department of Children and Families, along with evidence of assets and income.
Our firm may be able to assist with services to help an individual qualify for Medicaid. We are also willing to partner with those organizations and people already assisting you.
Other Planning Documents
Other estate planning documents may include a premarital agreement.
Premarital agreements may be a consideration when there is a second marriage. They could be important for several reasons. They can serve to protect the financial future of a child from the first marriage in the case of a death or divorce.
Premarital agreements may also be helpful in situations where additional assets are acquired before the second marriage, and you do not want to share those assets in the case of a divorce.
If you are contemplating a marriage, have children or assets, or are presented with a prenuptial agreement, you should seek legal counsel for drafting or review.
