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Estate Planning involves more than simply executing a will or trust or spelling out what happens to your assets when you die. Estate Planning is as much about planning for death as it is about planning to live. Estate Planning is the process of creating a comprehensive plan for life and death. It involves identifying and clearly defining important roles such as:
(1) Who will manage your financial affairs if you become incapacitated?
(2) Who will make healthcare decisions on your behalf in the event you cannot make them yourself?
(3) Who will marshal and distribute your assets upon your death?
(4) Who will receive your assets when you die and how will your assets be distributed?
Estate planning instruments such as wills, trusts, durable powers of attorney, healthcare surrogate designations, living wills, and preneed guardian designations are all tools for accomplishing a client’s goals and objectives. Each document plays an important and critical role in creating a comprehensive plan for death and life. Below is a summary of the important roles each of these documents play in a comprehensive estate plan:
Last Will and Testament
A Last Will and Testament is essentially a letter to the Probate Judge summarizing (1) who you would like to administer your probate estate (e.g. whom a person has nominated as Personal Representative of their probate estate); and (2) to whom a person would like their probate estate distributed (e.g. a person's beneficiaries or heirs). A Will is also the legal instrument in which a person nominates guardians of their minor children. A Will serves as a road-map for what happens to a person's probate assets upon death. Since a Will is only filed at time of death, a Will does not deal with a person's incapacity. In other words, if a person only has a Will, the only plan for that person's incapacity is a guardianship proceeding.
Living Revocable Trust
A Living Revocable Trust is essentially a will-substitute and probate avoidance mechanism. Assets held in a Living Revocable Trust avoid probate because the assets are not titled in a deceased person’s name at death. A Living Revocable Trust is also a way to hedge against the risk of a guardianship over a person's property since assets held in a Living Revocable Trust can be utilized for the benefit of the person(s) who created the Trust, even though the person may be[come] incapacitated.
Power of Attorney
A Power of Attorney is a legal document which grants someone else (e.g. an “agent” or “attorney-in-fact”) the legal authority to act on a person’s behalf. A Durable Power of Attorney includes a provision which states that a person’s (e.g. the principal’s) grant of legal authority to someone else (e.g. the “agent” or “attorney-in-fact”) survives the principal’s incapacity. The types of decision making authority covered by a Durable Power of Attorney often include:
Powers of Attorney are void upon death, meaning the grant of authority under the power of attorney dies with the person who granted the authority.
Healthcare Surrogate Designation
A Healthcare Surrogate Designation is a legal instrument which specifies who has the legal authority to make healthcare decisions on someone’s behalf. A Healthcare Surrogate Designation is essentially the medical equivalent of a Durable Power of Attorney. Healthcare Surrogate Designations can be very broad in scope (meaning it can specify that a person can make all healthcare decisions for someone) or narrow in scope (meaning it can limit the types of decisions a person can make and the circumstances in which those decisions can be made).
Preneed Guardian Designation
A Preneed Guardian Designation is essentially a letter to the Guardianship Judge in which a person nominates a Guardian of his/her Person and Property in the event a Guardianship proceeding is commenced. A Guardianship proceeding is a lawsuit to remove a person’s rights and appoint a Guardian to manage a person’s affairs (including financial and healthcare-related decisions). There are several different types of Guardianship proceedings, such as a guardianship over the property of a minor, guardianship of a person, guardianship of the property of a person. Often, a guardianship proceeding is commenced when a person experiences some sort of incapacity event (such as Dementia or Alzheimer’s), but can include other circumstances. In order for a guardian to be appointed, it must first be proven that a guardianship is necessary. Therefore, a proceeding to determine incapacity is often commenced in conjunction with a guardianship. The incapacity proceeding is a lawsuit to determine a person lacks the capacity to make decisions for himself or herself. A Preneed Guardian Designation is a legal document in which a person may specify whom they would like to serve as their Guardian if a Guardianship is necessary.
Probate is the court process of settling an estate. It involves filing a Petition with the Court (essentially an application), the appointment of a Personal Representative (e.g. the person given the legal authority to settle an estate), notification to all interested parties and creditors, public notice of the estate administration, securing assets, paying bills and taxes and making distribution of the estate. The process involves many steps, each of which requires attention and careful consideration.
Trust Administration is the process of administering a Trust in accordance with its terms and purpose. There are several different types of Trusts including:
Each of these types of trusts serves a purpose. Trust administration involves administering the Trust in accordance with its terms, the nomination of a Trustee, acceptance by the Trustee of the duties of a Trustee, notification to Trust beneficiaries and interested parties, including creditors, management and control of trust assets, payment of bills and taxes, trust accounting(s), and distribution.
There are several different types of Probate & Trust Litigation cases. These include:
Probate & Trust Litigation cases are often very fact intensive and fact driven cases which require careful consideration of the facts, available evidence and the law. Law Offices of Robert S. Walton, PL has experience in all probate & trust litigation cases.
A Guardianship is the legal process of removing a person's rights and appointing a guardian to care for the person and to manage the person's property. It is essentially a lawsuit to remove some or all of a person's constitutional rights due the alleged incapacity of the person. There are different types of Florida Guardianship proceedings, including:
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Robert S. Walton, PL