An estate is simply ownership in land or other property. If you own a home, have some savings, or own any goods such as a car or furniture, then you have an estate. Estate Planning is the process whereby a person develops a plan and prepares documents to safeguard, protect, and distribute estate assets before and after death for the benefit of loved ones and charities. The plan takes into consideration the effects of state and federal tax and administrative laws and regulations. It also involves planning for the use of your assets for your care if you become unable to manage your affairs during your lifetime. Estate Planning can also include:
Wills – A will is a document by which a person (the testator) regulates the rights of others over his or her property or family after death. If a person dies without a will (intestate), the decedent’s estate is distributed according to the Florida intestacy statutes. Some of the advantages of creating a will are as follows:
- You decide who receives your property instead of the state directing who will receive your property
- You may name the personal representative (executor) of your will provided they’re qualified under Florida law
- Real estate and other assets may be sold without court proceedings, if your will authorizes it
- You decide who bears any tax burden rather than the law making the decision
- You may designate a guardian for minor children
Trusts – A trust is an arrangement whereby property (including real, tangible and intangible) is managed by one person (or persons, or organizations) for the benefit of another. A trust is created by a settlor, who entrusts some or all of his or her property to people of his choice (the trustees). The trustees hold legal title to the trust property (or trust corpus), but they are obliged to hold the property for the benefit of one or more individuals or organizations (the beneficiary), usually specified by the settlor, who hold equitable title. The trustees owe a fiduciary duty to the beneficiaries, who are the “beneficial” owners of the trust property. Trusts are either created during the settlor’s lifetime (inter vivos trusts) or upon the settlor’s death via a will (testamentary trusts). A trust can either be revocable or irrevocable.
- Revocable Trust. A trust of this kind can be amended, altered or revoked by its settlor at any time, provided the settlor is not mentally incapacitated. Revocable trusts are becoming increasingly common in the United States as a substitute for a will to minimize administrative costs associated with probate and to provide centralized administration of a person’s final affairs after death.
- Irrevocable Trust. In contrast to a revocable trust, an irrevocable trust is one in which the terms of the trust cannot be amended or revised until the terms or purposes of the trust have been completed. Although in rare cases, a court may change the terms of the trust due to unexpected changes in circumstances that make the trust uneconomical or unwieldy to administer, under normal circumstances an irrevocable trust cannot be changed by the trustee or the beneficiaries of the trust.
Powers of Attorney – Power of Attorney is an authorization to act on someone else’s behalf in a legal or business matter. A principal authorizes an attorney-in-fact to act on the principal’s behalf by signing a power of attorney. As an agent, an attorney-in-fact is a fiduciary for the principal, so the law requires an attorney-in-fact to be completely honest with and loyal to the principal in their dealings with each other.
Under Florida law, a power of attorney must contain numerous specific provisions to be fully effective. Many online forms and store bought forms will be inadequate in providing the attorney-in-fact with the necessary authority to handle the principal’s affairs.
Health Care Surrogates – In the event you are unable to make medical decisions regarding your health due to incapacity, a health care surrogate can give the informed consent necessary for medical treatment, surgery, or diagnostic procedures for your benefit. The surrogate will consult with your doctor if you cannot. A complete designation will contain language allowing your surrogate to obtain medical records as well as giving full authorization to communicate with your physicians.
Living Wills – A living will is your final declaration to medical personnel and your loved ones that you do not want to have your life artificially prolonged if you are in a persistent vegetative state or have a terminal or end stage condition. Your physicians will do everything possible to keep you comfortable. [A living will can help prevent unnecessary emotional suffering and financial expense for both you and your family.] A living will allows you to anticipate this decision and prevent your family members, or a court, from making this decision for you.
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