What is Estate Planning Law?
Estate Planning is a process of considering alternatives, thinking through, and setting up legally effective arrangements that would meet your specific wishes if something happens to you or those you care about.
Good estate planning is more than just a simple Will. Estate planning also typically minimizes potential taxes and fees and sets up contingency planning to ensure your wishes regarding health care treatment are followed. On the financial side, a good estate plan coordinates what would happen with your home, your investments, your business, your life insurance, your employee benefits (such as a 401K plan), and other property in the event you become disabled or if you die. On the personal side, a good estate plan includes directions to carry out your wishes regarding health care matters so that if you ever are unable to give the directions yourself, someone you select would do that for you and know when you would want them to authorize heroic measures and when you would prefer they stop medical treatment.
Only an estate planning attorney who regularly practices in the fields of wills, trusts, probate, and estate planning can provide sound legal advice as you put your estate plan into place. Estate planning attorneys are subject to regulation by state bar organizations, many of which have continuing education requirements and mandatory liability insurance if the lawyer makes a mistake. When you speak with an estate planning attorney, you can get answers to your questions --including how much it would cost. Often the expense incurred in retaining an estate planning attorney to prepare and help you put an estate plan into place is worth hundreds of times what you and your family would pay with no planning or poor planning. It would also avoid the financial and emotional nightmares of a poorly drafted (or improper) plan.
The only time that you can prepare and implement an estate plan is while you are alive and have the legal capacity to enter into a contract. If you are unable to manage your own affairs or suffer from some other disability that affects your legal capacity, your estate plan may be effectively challenged by those who assert that you lacked capacity at the time the documents were created, that you were subjected to fraud, coercion or undue influence during the creation and implementation of your plan.
An estate plan consists of one or more documents that set forth instructions. Some documents are used to control health care decisions, others control your property in the event of your incapacity, and still other documents will control the distribution of your property in the event of your death.
As you begin the process caveat emptor (let the buyer beware). There is a lot of information out there; while some of it is very good, some is misleading at best. There are many over-the counter guides to estate planning available at bookstores. Some are pretty decent, most are awful. If you plan to do it yourself, be prepared to spend a fair amount of time on this project. It is best to discuss your plans with an experienced estate planning attorney.
You should have an estate plan if:
You are the parent of minor children
You have property that you care about
You care about your health care treatment
If you do not have minor children, do not care about your property, and have no concerns about your health care treatment, then you do not need an estate plan. But if you meet any of these categories above, you should have an estate plan.
Several of the following documents are typically used as part of the estate planning process:
A Will, sometimes called a Last Will and Testament, to transfer property you hold in your name to the person(s) and/or organization(s) you want to have it. A Will also typically names someone you select as your Personal Representative (or Executor) to carry out your instructions and names a Guardian if you have minor children. A Will only becomes effective upon your death, and after it is admitted to probate.
A Durable Power of Attorney for Health Care or Health Care Proxy appoints a person you designate to make decisions regarding your health care treatment in the event that you are unable to provide informed consent.
A Living Will or Directive to Physicians is an advance directive that gives doctors and hospitals your instructions regarding the nature and extent of the care you want should you suffer permanent incapacity, such as an irreversible coma.
A Durable Power of Attorney for Property appoints a person you designate to act for you and handle financial matters should you be unable or perhaps unavailable to do so.
A Living Trust can be used to hold legal title and provide a mechanism to manage your property. You can select the person or persons you want -- often even yourself -- as the Trustee(s) to carry out the instructions you want in the Trust and name one or more Successor Trustees to take over if you cannot. Unlike a Will, a Trust usually becomes effective immediately, continues in force during your lifetime even in the event of your incapacity, and continues after your death. Most Trusts are revocable, which allows the person who creates the Trust to make future changes, modifications and even terminate it. (If the Trust is irrevocable, changes, modifications, and termination are very difficult (and sometimes impossible), although such Trusts often carry some tax benefits.) Trusts also help you avoid or minimize probate expenses, delays, and publicity.
A Family Limited Partnership can be used to own and similarly manage your property to a Trust but allows additional tax planning techniques to be employed. Family Limited Partnerships are typically used for those with large estates and thus need specialized estate planning to minimize federal and state estate/death/inheritance taxes and provide asset protection elements.
An Estate Plan uses several tools to prevent the court from gaining jurisdiction over your affairs.
A Living Will or Directive to Physicians determines if artificial life support systems are to be used or withheld.
A Durable Power of Attorney for Health Care is used to provide authority to a person with the utmost trust and confidence to make decisions regarding health care treatment when you cannot provide informed consent.
A Durable Power of Attorney for Property enables you to authorize a person to act in your place and stead in the event of your incapacity; this attorney-in-fact can manage your financial affairs without the need to have intervention by the courts.
A Trust or Family Limited Partnership is used to hold property; the Trustees or Partners manage the property held by either of these entities.
Both the Trust and the Family Limited Partnership continue to manage the property even if you are incapacitated.
Thus, a properly prepared estate plan can enable you to avoid a Conservatorship proceeding over your estate. Compared to the cost of a Conservatorship proceeding, an estate plan can be very attractive.
Give us a call. We can help.
Law Office of Shawn C. Newman, P.A.
710 Northeast 26th Street
Wilton Manors, FL 33305-1238
Phone: (954) 563-9160
Serving all of the greater Fort Lauderdale area and Broward, Palm Beach, and Miami-Dade counties in Southern Florida.
