Estate Planning FAQs
Planning for the future of your estate begs many questions. Do I need a will? What is a trust? My estate isn’t very large, or I have dependents with special needs – what does this mean for my estate? Here, our attorneys answer these important questions and many more to give you the insight and guidance you need to get started securing the future for yourself and your family.
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How Much Do We Charge For Last Wills and Testaments?
In our free initial consultation we will review your assets, your wishes and the best way to make sure you and your heirs are provided for. We will send you a questionnaire to complete that will show your family picture, your goals and your finances. In our meeting we will quote you a fee based upon the work and complexity involved. The key to any estate planning is to know that having a will, or a trust, is not mere document preparation, but seeing how your assets work with your written documents. Having a well written will is very important but, even more importantly, you need to know how all of your assets are distributed upon your death as your will may control few of your assets.
Our basic fee to complete a last will and testament is $400 for a single person, $500 for a couple. Our pricing includes an analysis of your wishes, review and execution of your document(s), discussion of assets and beneficiaries, and among other matters.
Please call us today to help you!
Who should serve as my health care surrogate in Florida?
Choosing your Healthcare Surrogate in Florida is one of the most important decisions you can make in estate an incapacity planning. Your health surrogate is the person who will make your healthcare decisions and generally advocate for you as you age or experience a disease process. While we typically associate your surrogate with helping with end-of-life issues associated with your living will, the surrogate’s duties are broader than this. The surrogate may need to help you move to assisted living or nursing home, may need to help arrange home care, may need to attend doctor's appointments and much, much more.
Choosing a surrogate may not be as easy as you think. To help you make the right decisions, you should review the following list of questions to as part of the decision tree. Ask yourself, does your nominated HCS have the following attributes:
1. Would be willing to speak on your behalf?
2. Would be able to act on your wishes and separate his/her own feelings from yours?
3. Lives close by or could travel to be at your side if needed?
4. Knows you well and understands what’s important to you?
5. Is someone you trust with your life?
6. Will talk with you now about sensitive issues and will listen to your wishes?
7. Will likely be available long into the future?
8. Would be able to handle conflicting opinions between family members, friends, and medical staff?
9. Can be a strong advocate in the face of an unresponsive doctor or institution personnel.
In choosing the best surrogate, you should name alternate surrogates as well. This way, if one surrogate is not able to serve, or is not reasonably available, the other surrogate can serve.
As part of our estate planning we will review all of your options, making sure your wishes are followed during your lifetime and upon your death.
Can I Name My Living Trust As Beneficiary Of My IRA?
There are times when you may want to name your living trust as beneficiary of your IRA or 401k (i.e., your tax deferred qualified plans) upon your death but there are a lot of rules on this. First, you would want to confirm the reason for naming your trust as beneficiary of your qualified plans. Your qualified plans have beneficiaries that avoid probate in the first place, so the main reason you would want them to go to a trust is so that they are held in trust for a beneficiary.
One of the main concepts of estate planning with your qualified plans is making sure they "stretch out" to your beneficiaries upon your death. Upon your death, your beneficiaries do not need to withdraw the funds. In fact, the longer the beneficiaries leave the funds in account the longer the funds can grow tax free. Tax free growth over many years is an amazing way to grow an IRA. The long and short of it is that an individual beneficiary can roll over an IRA into a "beneficiary directed" IRA. The beneficiary can then leave the funds in the IRA, taking out only required minimum distributions over their lifetimes allowing for this amazing growth.
In order for a trust to be able to stretch the IRA out like an individual, the trust must be specifically drafted to recieve the IRA. When correctly drafted, the trust can act as a "see through trust" for IRS purposes, which allows the wonderful stretchout. To qualify as a look-through trust, the following criteria need to be met:
- Must be valid under state law
- Must be irrevocable (or revocable while the IRA owner is alive, provided the trust becomes irrevocable upon the individual's death)
- Must have named identifiable beneficiaries
- Must provide the plan administrator with either a copy of the trust instrument or qualifying documentation of the trust
If your trust is not drafted correctly to recieve your qualifed plan, the opportunity to leave the funds in the IRA (i.e., to stretchout the funds) may be severely limited. This means that the IRA will have to be distributed out quickly, which creates additional taxes. Essentially, a poorly drafted trust is a wealth killer, not a wealth creator.
You may want to leave assets in a trust for a beneficiary. Perhaps the beneficiary is too young, too irresponsible, has creditor issues, has special needs, is in a troubled marriage or more. If you want to create a trust for someone’s benefit, you can name the trust as beneficiary, but the trust must be drafted the correct way.
I am an expert at drafting IRA Trusts, having spent many, many hours researching, attending seminars, and readings on the subject. I am also a member of Wealthcounsel, which has a great standalone IRA trust. If you want to leave your IRA or 401k to a trust for a beneficiary’s benefit, we will be glad to assist you.
Should I have a Revocable Living Trust?
Most people want to avoid probate upon their deaths. This means that they may want to have a living trut based estate plan over a will based estate plan. But does this mean that you should create a living trust as part of your estate plan?
There is no simple answer to this question. Creating a living trust would generally mean that you have assets that would go through probate. When assets go through probate, the heirs have to hire an attorney. The attorney usually gets paid a fee of 3% of the probate assets. The probate process also takes from 6-9 months under most circumstances. Thus, revocable trust planning could save your heirs both time and money.
One of the first quesitons is if you want to save your heirs both time and money. Some people do not have close families that they want to try and save money for. Some people may not have a lot of probate assets in the first place, so there may be other ways to avoid probate that are even better than through a living trust. The other aspect of trust planning is that trusts are generally more expensive than wills, which means that if you want to spend less money with an attorney at this point in your life, you may want a will based estate plan.
The best way to know if you should have a living trust based estate plan is to sit down with an attorney who will review your assets, your goals and the best way to accomplish your goals. Our estate planning process will help you decide which way is best for you and your family.
We have a free guide to living trusts in Florida to help you make an educated decision as part of your estate plans.
What is the difference between a Living Will and a Do Not Resuscitate Order in Florida?
There is a huge difference between a living will and a Do Not Resuscitate Order in Florida. As part of your estate and incapacity planning, you should have a durable power of attorney, designation of healthcare surrogate and a living will. These documents will prepare you and your family to take care of your legal and financial decisions. Our handout, Four Essential Estate Planning Documents, can help you clarify these documents.
Your living will is the written statement of your end-of-life wishes. It says that if you are in an end-stage condition, a terminal condition or a persistent vegetative state, you would want certain life-prolonging procedures without. Life-prolonging procedures can include withholding life support such as tube feeding, ventilation, surgery, dialysis, pacemakers and more. Chief among these procedures is whether you would want to be resuscitated if you were sick and close to the end of your life. Thus, your living will is the written statement that would say that you would want a Do Not Resuscitate Order.
The Do Not Resuscitate Order, on the other hand, is a physician's order for medical providers to not provide CPR to you. This Florida form is always on yellow paper so that it can be easily identified by everyone. Your physician signs this document and is typically not provided from your attorney. If you have a DNRO and are home, you would typically hang it on your refrigerator as EMS responders are trained to look for this paperwork.
In looking at CPR (cardiopulmonary resuscitation), it is important to remember how traumatic this is on the body. CPR often means broken ribs, internal bleeding and immediate placement on a ventilator afterward. CPR is also very ineffective in actually helping you live longer. Statistics show that a healthy person has a less than 15% chance of full recovery after receiving CPR while an older person with multiple health issues has a less than 2% chance of recovery from CPR. Thus, having a DNRO would be very, very important to allow you to pass away quickly without the trauma of CPR.
If your loved one is experiencing end of life issues, our life care planning team can help advocate to make sure your loved one is taken care of and their wishes followed.
Do I need to re-do my last will and testament if I just moved to Florida?
Moving to another state means that you should have an attorney review your existing estate planning documents to make sure they are correct. Importantly, just because you moved it does not mean that your last will and testament must be redone. You should, however, have a knowledgeable attorney review your will and other documents, just in case there are Florida specific rules that you should know.
One reality is that your estate planning documents may be older and may have some long awaited updates, so it can never hurt to review the documents before you visit an attorney. It is also more likely that your incapacity planning documents, meaning your power of attorney, designation of healthcare surrogate, and living will, should be changed as the documents are more state specific.
If you would like to have your out of state documents reviewed, we offer a free, initial consultation.
Should I name Co-Powers of Attorney?
When we meet with clients they sometimes want to name their children as co-powers of attorney. Sometimes they want to divide the workload for their children, or they could be concerned about one child travelling, or they want one child to be able to watch over another child. Regardless of the motives, we generally DO NOT like to name co-powers of attorney. The reason is that in the event the powers of attorney had a conflict, then who is in charge? Answer - they both are! This could certainly be a recipe for disaster.
Our preferred method for incapacity planning is naming an agent and then his or her alternates in descending order. For instance, you would likely name your spouse first, then your most trustworthy, responsible and local child as alternate to your spouse, then name a third or fourth alternate as well. We sometimes see incapacity planning documents that are not flexible enough as they are not able to age well. Family members may move, for instance, and your documents need to take possible future events into account.
We do, however, have one important exception to this rule. Sometimes with an aging couple, it may not be best to name your spouse as your power of attorney, or perhaps you would want to name your spouse and your trusted child as co-powers of attorney. Here is an example of our planning:
Husband and Wife are both 88 years old. The husband is having a few memory issues but is still very competent. The wife is mentally competent but having some health issues and is not able to get around very well due to her osteoporosis. They have a trusted child who lives very close and helps matters on a weekly basis.
In this fact pattern, we think it highly appropriate for each spouse to name each other as their power of attorney and also the trusted child. This way, due to the elder's possible future decline, both mentally and physically, we are better prepared to help take over and help them, when necessary.
As each situation is different, we will be glad to discuss your incapacity planning with you so you and your family are best prepared for the future.
Will My Living Will Be Effective at End of Life?
A living will is a written statement expressing your end of life decisions. Most everyone agrees that they would not want to "be a vegetable" but living wills have more nuance than this. Studies have shown that living wills have not been effective in helping us die better deaths in the United States. Statistics have shown, for instance, that people with living wills and people without living wills die in the hospital at the same percentage rate. One can argue that this means living wills are ineffective because most people would not want to die in a hospital but would rather be at home with their loved ones.
If living wills are ineffective, what are the reasons for this? The answers are generally as follows:
- The family/care providers never had a copy of the living will;
- The living will is vague and not specific;
- The patient changes their mind on withholding medical procedures at end of life;
- The healthcare surrogate did not know what the principal wanted;
- The healthcare surrogate does not enforce the living will, maybe through family pressure;
- The doctors do not discuss end of life issues clearly enough with family;
- The family does not understand that their loved one is actually at end of life;
- The surrogate/family are not realistic in medical expectations and medical futility (i.e., they do not want to give up hope);
- And more . . .
If living wills are generally considered ineffective, what are the options for improving that you die in accordance with your wishes while avoiding unnecessary medical procedures?
- Communicate your wishes with your surrogate AND family. Some people do not even talk with their surrogate about their end of life wishes or experiences. A good discussion with these people will make sure your wishes are known for all, which will reduce the likelihood of family conflict and confirm that the surrogate will be able to enforce your end-of-life wishes.
- Have a good, specific living will. We like to use the Empath Choices for Care living will as it is specific and broad at the same time.
- Do not use the Florida Statutory living will. Our opinion is that this living will is too vague for many end of life situations - doctors and other caregivers do not like vague documents in the least.
- Make sure your surrogate and family has a copy of your living will. This only makes sense. At our office, we scan in all estate planning documents so our clients can share them easily with their family.
- Review your living will often to make sure it meets your wishes.
- Confirm that your healthcare surrogate is strong enough to enforce your wishes, which could mean dealing with bad medical advice or overly emotional family members.
- Make sure you know the difference between a living will and a Do Not Resuscitate Order. Among other differences, the living will is prepared by your attorney while the Do Not Resuscitate Order is signed by your physician. We also have an FAQ on the differences between living wills and Do Not Resuscitate Orders in Florida.
I have spent many, many hours studying living wills and end of life issues in order to help my clients the best I can. If you want a good elder law attorney who knows about living wills and advanced directives, and not one who is just filling out a form, I am glad to help you and your family as part of our incapacity planning. You are also welcome to attend one of our free monthly seminars on estate planning and Medicaid/asset protection planning as well.
Why Do We Need To Review Your Assets In Creating Your Estate Plan?
When new or returning clients come into our office to create their estate plan, such as through wills, trusts or other legal instruments, we typically ask them to bring a list of all their assets. We do this for a number of reasons as we need to know if your estate is taxable, whether you have a large or small estate that will provide for long-term care and other contingencies as necessary, and we need to know the types of assets you own. All of these may drastically affect our approach to planning to meet your desires and how we implement your plan.
To help tailor an effective estate plan for your specific situation, consider the following general rules regarding distribution of your assets:
- Assets in your own, individual name are distributed according to your last will and testament. These could, potentially, include land, stocks, bonds, bank accounts, etc. Without proper planning these assets are distributed through the probate process after your death.
- Assets that are jointly held are generally distributed to the survivor/co-owner. Examples of these include land and a residence owned jointly by a husband and wife. Upon your death, ownership simply transfers to the survivor and are not subject to the probate process.
- Assets with beneficiary designations, such as life insurance policies, IRAs, 401Ks and annuities are distributed to the named beneficiary, regardless of the will's contents.
- Assets that are in your trust remain in or are distributed according to the trust, outside of the probate process.
With these four rules, you will note that your last will and testament may actually cover few of your assets. It is very common for people to include joint owners on land, bank accounts, etc., and have few assets in their own, individual name. This process, while it limits those assets that may be subject to the probate process, does carry some risk/reward implications which should be carefully reviewed with an attorney.
In conclusion, please make sure that you know how all of your assets are titled and how they would likely be distributed upon your death and not just the assets that are subject to your last will and testament. This can be a complicated subject and we are more than happy to sit down, review your assets and make sure your wishes are followed.
What Is the Difference Between a Will and a Trust?
A will and revocable trust are similar in that they both allow you to specify exactly how you want your property distributed to your heirs after you pass away. However, there are major differences that everyone should know, the following being the most important:
- Your last will and testament directs probate assets to specific heirs throught the probate process;
- While the revocable living trust directs trust assets to specific beneficiaries without the necessity of probate in the first place.
When creating your estate plan, you should consider whether you want a will based estate plan or a trust based estate plan. The general rules for these types of plans are as follows:
- A will based estate plan is good for:
- people who want to spend as little money as possible at this point in time;
- people with fewer assets;
- people with very simple estates;
- people who do not care as much about avoiding probate for their heirs.
- A trust based estate plan is best for:
- More complicated estates;
- People with more assets;
- People want to spend more money to help save their children even more money;
- People with land in other states;
- People who want to save money and make things easier for their children.
If you want to learn more about wills and trusts, please feel free to attend one of our free monthly estate planning seminars where I will discuss probate, wills, trusts, incapacity planning and more. We promise that it will be worth your time!
What is the Best Way to Create a Last Will and Testament in Florida?
The best way to create a last will and testament is by working with an experienced estate planning or elder law attorney to assist you. The most important thing for anyone to know is that a last will and testament (defined under the Florida Probate Code) is not just a form or piece of paper. Your will may or may not control many or much of your assets and your attorney can help teach you about what your will does, and does not, do. Here is a general list of reasons to have an attorney assist you with your last will and testament:
- Peace of Mind! Working with an attorney to make sure you have made the right choices will give you peace of mind knowing all of your questions have been answered and your wishes will be followed through with.
- You do not know what you do not know - just because your will says it does not make it legal.
- Your will does not control all of your assets - your attorney can help clarify what this means.
- Your attorney should help make sure your will correctly interacts with your non-probate assets.
- Dying intestate (without a last will and testament) can create many problems for families and heirs.
- Your attorney can also assist you with a durable power of attorney, designation of healthcare surrogate and living will.
- Your attorney can discuss probate and probate avoidance as part of your estate plan.
- Even the correct will signing procedure is difficult. If your will is not signed in the exact legal way, it will be null and void, meaning your wishes would not be followed.
If you would like to learn more about wills and estate planning in Florida, please attend one of our free monthly estate planning seminars. We also have more information on probate and probate avoidance in our legal library.