Estate planning is a generic term which describes the legal process of formulating and implementing a plan to manage your assets upon your death or incapacity.
The first step in formulating a plan is for an individual to disclose to their estate planning attorney the extent and nature of their assets, which includes all checking and saving accounts, IRA’s, 401(k)’s or other retirement plans, life insurance policies, interests in all businesses, all real property, all valuable personal property and to disclose information about your intended beneficiaries and whether there are any special circumstances pertaining to those persons. This step is important as it is necessary to determine whether you have a taxable estate or not, and to determine which estate planning alternatives would best fit your situation, as each person’s situation is unique.
Proper estate planning is important to insure that your assets are correctly distributed upon your death or incapacity, assure that your assets are not left outright to minor children or beneficiaries who are incapable of managing their affairs because of a disability, avoid probate court which will subject your assets to the claims of your creditors at your death and will delay the time of distribution to your beneficiaries. Additionally, if you do not have a proper estate plan in place, the State of Florida by way of the intestacy statutes will dictate to whom your assets are distributed upon your death. RECENT FIGURES HAVE SHOWN THAT 60-75% OF ALL AMERICANS DIE INTESTATE (WITHOUT A WILL OR ESTATE PLAN IN PLACE)! Some famous individuals have died intestate, including 4 U.S. Presidents, Buddy Holly, Pablo Picasso, Michael Jackson, and more recently, the musician formerly known as Prince, former NFL quarterback Steve McNair, celebrity DJ AM (Adam Goldstein) and the well-known hip-hop artist, Tupac Shakur.
At a minimum, an individual should have the following documents in place as part of their estate plan:
Last Will and Testament: A document executed pursuant to the Florida Probate Code, which disposes of your property upon your death.
Durable Power of Attorney: A document in which you, the principal, nominates another person to act as your attorney-in-fact and agent, which allows that person to step into your shoes and conduct any business you would be able.
Health Care Surrogate with HIPAA compliant language: A properly witnessed document that nominates another person to act as your agent for all health care decisions and allows that person to have access to all of your medical records so that competent and informed decisions can be made.
Living Will: A statutorily executed document which gives explicit instructions not to administer any life prolonging procedures, including food and water. (Think Terri Schiavo, who was kept in a vegetative state for 15 years because she did not have a Living Will in place.)
Declaration of Pre-Need Guardian: A document executed pursuant to F.S.A § 744.3045, which states a preference for a guardian of both you and your property if you become incompetent to manage your affairs.
Declaration of Pre-Need Guardian for A Minor: If you have minor children, you may execute a document pursuant to F.S.A. § 744.3046, which will name a guardian for the person and property of your minor children in the event that you and your spouse both die or become incompetent.
For some individuals, additional documents may be warranted such as an irrevocable life insurance trusts, revocable living trusts, prenuptial agreements (particularly in the case of marriages other than the first), buy-sell agreements and family limited partnerships.
In order to accomplish your objectives, after a disclosure of your assets and liabilities on an intake questionnaire (for your convenience, you may print off this intake form and bring the completed copy to your initial meeting), we will meet with you and your spouse in person to discuss your plans and answer any questions you may have. After the initial meeting, we will formulate a plan and draft all the necessary documents and have you come back for the execution of the required documents.