Estate Planning in Brief

What?

Estate plans document your wishes related to health, finances, and possessions during incapacitation and/or after death.

Why?

Without an estate plan, the courts will make decisions on your behalf based on a series of laws, which can be both timely and costly.

How?

Answering a series of financial and personal questions, along with a witnessed signing will create a legally enforceable estate plan.

Herron Keller Moore: Estate Planning Attorney Experts

Estate planning is a critical piece of the puzzle in protecting your assets, planning for future health events or incapacity, and ensuring your loved ones are taken care of. Every plan is personal. And so, the estate planning process is both dynamic and tailored to an individual’s wishes.

What Is An Estate Plan

A properly drafted estate plan can avoid questions related to medical care during incapacitation, gaps in existing financial obligations, and delays in the distribution of your property. Above all, the job of a high-quality estate planning attorney is to counsel and listen. From there, a high-quality, custom document is drafted. This document provides peace of mind and the confidence that your loved ones will receive the full measure of what you intended for them.

Although Hollywood has dramatized estate planning as some esoteric area of the law fit only for the wealthy, the truth is that anyone of any income level can and should have the basics of some plan in place. In general, you can think of estate planning as creating a set of legally enforceable documents for two fundamental life events: your wishes in the event you are incapacitated (temporarily or permanently) and your wishes when you pass.

The Roles of An Estates Lawyer

An estate lawyer, also known as an estate planning attorney, specializes in helping clients plan for the management and distribution of their assets after their death.

  • Estate Planning

    An estate lawyer helps clients create comprehensive estate plans that include wills, trusts, powers of attorney, and advance directives. These documents ensure that the client’s wishes are carried out regarding asset distribution, healthcare decisions, and guardianship of minor children according to the estate law.

  • Trust Creation and Management

    Estate attorneys assist in setting up various types of trusts (such as revocable living trusts, irrevocable trusts, and charitable trusts) to manage assets, minimize estate taxes, and provide for beneficiaries in specific ways.

  • Tax Planning

    Estate lawyers provide strategies to minimize estate and inheritance taxes, ensuring that more of the client’s assets are preserved for their beneficiaries.

  • Probate and Estate Administration

    Estate lawyers guide executors and beneficiaries through the probate process, helping them to fulfill legal obligations, file necessary court documents, and ensure the proper distribution of the estate.

  • Asset Protection

    An estate lawyer advises on ways to protect assets from creditors and lawsuits, often through legal structures like trusts and family-limited partnerships.

  • Legal Counsel and Dispute Resolution

    Estate lawyers offer legal advice on estate matters and help resolve disputes among beneficiaries or between the estate and third parties.

  • Updating Estate Plans

    Estate lawyers assist clients in updating their estate plans as their circumstances change, such as after marriage, divorce, the birth of a child, or significant changes in financial status.

Business Planning

An often-overlooked area of estate planning that is crucial to business owners is Business Succession Planning. This is the strategic process of identifying and preparing for the transfer of ownership and management responsibilities of a business from the current owner to a successor, ensuring continuity and stability. This planning is crucial for several reasons:

  • Continuity of Operations

    Succession planning ensures that the business can continue to operate smoothly without interruptions, even if the current owner or key executives are unable to manage the operations due to retirement, death, or unexpected events.

  • Preserving Business Value

    A well-thought-out succession plan helps maintain or even enhance the value of the business by avoiding potential conflicts, operational disruptions, and loss of crucial knowledge and relationships.

  • Employee and Customer Confidence

    A clear succession plan reassures employees, customers, and other stakeholders that the business will remain stable and their interests will be protected, fostering loyalty and confidence.

  • Legal and Financial Clarity

    Succession planning addresses legal and financial issues such as estate taxes, ownership transfers, and funding the transition. Having a plan helps avoid legal disputes and financial hardships arising from poor succession planning.

  • Future Vision and Leadership

    It allows the current owner to select and groom a successor who aligns with the vision and values of the business, ensuring that the leadership transition supports the long-term goals and growth of the company.

Estate Plan Documents Related to Incapacitation

The individual components of an estate plan that relate to incapacitation are generally:

  • Living Will
  • Designation of Healthcare Surrogate
  • Durable Power of Attorney
  • Declaration of Preneed Guardian

A Living Will, not to be confused with a Last Will and Testament, is a written statement of your healthcare-related wishes in the event that you are unable to communicate those wishes yourself. This document often provides specific guidance for health-related circumstances, such as affirmatively stating no desire to have life artificially prolonged in the event of incapacitation, a terminal condition, an end-stage condition, or a persistent vegetative state.

Although Hollywood has dramatized estate planning as some esoteric area of the law fit only for the wealthy, the truth is that anyone of any income level can and should have the basics of some plan in place.

You may also choose to appoint someone to make all healthcare-related decisions in the event of incapacitation. This is made possible in the Designation of Healthcare Surrogate document. A healthcare surrogate is responsible for working directly with appropriate healthcare providers, providing informed consent, refusal of consent, or withdrawal of consent to any and all of your healthcare, including life-prolonging procedures. Your designated healthcare surrogate has a duty to make healthcare-related decisions you would have made under the circumstances.

A Durable Power of Attorney provides a trusted individual (the “agent” or “attorney in fact”) with the authority to act on your behalf. The “durable” aspect means it remains effective in case you become subsequently incapacitated. Frequently, this document gives an individual financial and legal domain over all or specific portions of your matters. For instance, the named “agent” or “attorney in fact,” would be able to make mortgage or car payments for you in order to avoid default on these loans. Again, the agent is duty-bound to make decisions that you would have made under the circumstances.

A Declaration of Preneed Guardian is a document that designates someone to serve as a guardian in the event of your incapacitation. This document, having previously been filed with the court, is only used after rendering a legal decision on your need for guardianship. A variation of this document, a Declaration of Preneed Guardian of a Minor, is also an essential part of the estate plans of those with minor children. In this document, parents set forth who they wish to take guardianship over their children in the event of death or incapacitation. Without this document, the State will look to Florida law for guidance, which may not align with the parents’ wishes.

Estate Plan Documents Post-Death

An estate plan usually includes the following documents, which are often referred to after someone’s passing:

  • Last Will and Testament
  • Trust (Revocable or Irrevocable)

The Last Will and Testament is a document that directs how your property, assets, and belongings are distributed after your death. It also names a “personal representative” or “executor,” who is responsible for managing the distribution of these items according to the instructions in the document. Last wills and testaments specify the property and name the person or group of people (the beneficiaries) who should receive it. These documents act as roadmaps that the personal representative is duty-bound to follow.

In addition to distributing your property according to the terms of the will, personal representatives are usually responsible for overseeing the overall administration of an estate. In short, the personal representative closes out, or provides finality, to the person’s worldly possessions. Administering an estate consists of a number of discrete tasks, some of which are listed below:

  • Identifying parties;
  • Taking an inventory of and valuing the assets;
  • Notifying creditors and paying debts;
  • Filing taxes;
  • Distributing the assets;
  • Preparing a final accounting report;
  • Maintaining records of the above transactions;
  • Petitioning the court for release once the estate is settled.

As you can see, there are quite a few steps to take. Since most personal representatives handle only a few estates in their lifetime, they often seek guidance. Fortunately, Herron Keller Moore has both the experts and the capability to guide you every step of the way. In fact, we have an entire department staffed with professional trust and estate counsel with decades of experience in probate-related matters.

… a Declaration of Preneed Guardian of a Minor, is also a very important part of the estate plans of those with minor children. In this document, parents set forth who they wish to take guardianship over their children in the event of death or incapacitation. Without this document, the State will look to Florida law for guidance, which may not align with the parent’s wishes…

Trusts, in particular, have become associated with “generational wealth,” most famous for serving as a vehicle for high-net-worth individuals to support family members years after death. Although trusts are often associated with larger estates, they are also commonly included in the plans of more modest or average estates. This is because trusts are a powerful planning tool with many benefits.

Although the concept may seem a bit complex, in simple terms, trusts transfer ownership of your property—whether financial, real estate or other types—to another person or entity for safekeeping. An easier way to understand this concept might be to think of your property in terms of toys. Assume that you currently store some of your toys in a chest in your bedroom. A trust transfers possession of that chest of toys to a close friend or relative for safekeeping (the trustee). The trustee, in turn, promises to take care of your toys and give them back to you when you ask or when you’re a bit older.

There are numerous benefits that this transfer of ownership can provide. For brevity’s sake, the following is a brief list of some of our favorite benefits that trusts can bring to estate planning:

  • Credit Shielding: Because ownership of the possessions has effectively been transferred out of your name, trusts can act as a shield to creditors, preserving this property. Indeed, trusts are frequently used to preserve funds from Medicaid clawback.
  • Probate Avoidance: Trusts avoid probate (and thus the court system) entirely. Although having a will does indeed speed the process of distributing assets, it still requires some court intervention, which does take time. Trusts can be nearly as seamless as retaining a joint account.
  • Control Over Distribution: Trusts can provide better control over the distribution of assets. We frequently see this with clients who are concerned about the possibility of senseless spending. In these instances, a trust can allow for conditions to be placed on the distribution of funds.

If you are in need of legal advice related to trusts or any step in the estate planning process, the attorneys at Herron Keller Moore are here to help. We have experience drafting various trust documents, including revocable, irrevocable, charitable, dynasty, personal residence, gun, pet, and special needs trusts.

Polk County Estate Planning Attorneys For You

Establishing a proper estate plan with your estate attorney can protect your assets, whether the assets are in the form of property, stocks, securities, bank accounts, or other valuables, from creditors, taxes, or other losses. Each person’s asset protection needs are unique, so it’s important to tailor their estate plan to their specific assets. A simple estate might be adequately protected with just a basic last will and testament, while more complex estates may benefit from trusts or even a Family Limited Partnership for better protection.

Estate planning can get complicated, and it is critical to work with an experienced estate planning attorney to guide you through the legacy planning process to ensure that your wishes are sufficiently encapsulated in a legally enforceable document. Herron Keller Moore LLC has attorneys on staff with decades of experience in drafting estate planning documents for estates of all sizes. Our lawyers have overseen countless estate administrations and understand how to guide you and draft personalized estate plans that will keep your interests protected and provide for your family long after you are no longer able to physically.

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Frequently Asked Questions Regarding Estate Planning

Those with few possessions and assets can undergo Summary Administration, which is an expedited form of Probate that is faster and less costly than traditional intestate probate. However, we suggest an estate plan for even the “average” sized estate in order to ensure clear directives and prevent potential infighting amongst beneficiaries.

A living will documents the medical procedures that a person wishes to receive in the event of incapacitation. In contrast, a last will and testament dictates how an individual’s assets should be distributed after his or her death. Despite the similar names, they are very different documents.

A health care surrogate designation provides authority related specifically to health care and medical matters. A durable power of attorney can confer authority over health care matters, but often also conveys wider authority, including over financial matters that are unrelated to health care.

Yes, you may designate an alternate health care surrogate. Under Section 765.202(3), Florida Statutes, “A document designating a health care surrogate may also designate an alternate surrogate provided the designation is explicit. The alternate surrogate may assume his or her duties as surrogate for the principal if the original surrogate is not willing, able, or reasonably available to perform his or her duties.”

Yes, you can revoke or remove a durable power of attorney. Under Section 709.2110(1), Florida Statutes, you “may revoke a power of attorney by expressing the revocation in a subsequently executed power of attorney or other writing signed by the principal.”

This depends widely on the estate itself, the plan, the beneficiaries, and the organization of the client. But the average married couple should expect to pay somewhere between $1,800 and $2,500 for a complete estate plan. Those with a high net worth can expect to pay more, as tax planning strategies will need to be implemented.

Let’s Plan Together

We at Herron Keller Moore consider estate planning a team sport that rewards communication and collaboration. Let’s work together to prepare for your future so that you can rest easy today.

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