It is easy to be lured by advertisements claiming you can save time and money by drafting your own Will using “do-it-yourself” software or “fill-in-the-blank” Will kits. It is unlikely that these systems will generate a suitable Will that accomplishes all your objectives. Only a qualified lawyer can interpret the maze of laws bearing on property rights, taxes, wills, probate, and trusts.
On the other hand, you can save your time and money by preparing thoroughly for a meeting with your estate planning lawyer. You can organize your information regarding assets, liabilities, and title arrangements, and discuss your feelings about providing for various family members. You should gather important documents such as previous wills or trusts, powers-of-attorney, life insurance policies, employment benefits, and prenuptial agreements or divorce decrees.
Not every state has a program requiring or allowing attorneys to designate a specialty area of practice, so you should inquire about the level of experience and qualifications in the specific estate planning area when selecting an attorney. Membership in certain Bar organizations often indicates a level of dedication to the estate planning field and a commitment to keeping abreast of the law. Most importantly, you should choose an attorney in whom you have confidence, either through recommendations from friends or your other professional advisors. You may also wish to interview more than one attorney. Remember, the advice and direction of your attorney will be essential in implementing an estate plan that both disposes of your assets according to your wishes and meets your other personal objectives.
Under Florida Law, the Living Will, Designation of Health Surrogate and Durable Power of Attorney are known together as “Advance Directives.” Because they are driven by ever-changing statutes, and because they are relatively inexpensive to update, I recommend every client do so every few years. If a client is chronically ill, then I may recommend more frequent updates.
Under Florida law, any person over the age of eighteen can designate another person, the Healthcare Surrogate, to make medical decisions during periods of incapacity. The Healthcare Surrogate is guided in end-of-life decision making by the Living Will, executed along with the Designation of Healthcare Surrogate. The Living Will contains instructions regarding the withdrawal or withholding of life-prolonging procedures in the event that such procedures become necessary to keep the person alive. Without these documents, a Guardianship, which can be very costly, may be necessary.
Medical professionals are required to take whatever steps possible to keep you alive in these instances. They err on the side of caution. If this is not your desire, you need to have the proper documents prepared and executed according to Florida Statutes, before the necessity arises. The alternative, a Guardianship, is a very costly legal process that can and should be avoided in your Estate Plan.
The Florida statutes regarding Living Wills and Healthcare Surrogates date to 1992. Under these statutes, Living Wills and Designations of Healthcare Surrogates created before 1992 are valid if legally sufficient when created. Even though they may survive legal challenges, these documents are intended to avoid legal interpretations, not invite them. These statutes have been amended by the legislature many times since 1992. Because of these changes, some medical professionals may only look to the most recent language, and they may not honor older documents even though they may be legally sufficient. Do not let an older document render your wishes invalid.
A Power of Attorney is a legal document wherein you designate another person, known as the “attorney-in-fact”, to make financial decisions for you. Under current law, the Power of Attorney is effective immediately upon execution. Without this document, if you become incapacitated, a Guardianship, which can be very costly, may be necessary.
A Revocable Living Trust may be amended or cancelled by the “Grantor” (the person who establishes the trust) during the Grantor’s lifetime. Transfers into the trust by the Grantor never cause gift tax complications. The Revocable Living Trust is not used for asset protection or estate reduction purposes. It is, however, commonly used in Estate Planning for other purposes.
The Revocable Living Trust primarily serves two purposes. The first purpose is to create transfers of property, at the death of the Grantor, that are more complex than mere outright distributions. Meaning, distributions to beneficiaries are held “In Further Trust” until the beneficiary attains a certain age or until sometime in the future. Complex transfers can be handled using a traditional Last Will and Testament, but not as effectively as with the use of the Revocable Living Trust.
The second purpose of the Revocable Living Trust is to avoid probate. Probate is the process where the court oversees the transfer of assets from a decedent to a beneficiary according to the terms of the decedent’s Last Will and Testament. Many people seek to avoid probate because it is public, time consuming, and costly. Assets that are transferred into a Revocable Living Trust avoid probate. The benefits over probate are privacy, quicker distribution of assets, and potentially less cost.
The Revocable Living Trust is more costly to prepare than a simple Last Will and Testament, but it could potentially save thousands of dollars through probate avoidance, depending factors such as:
If the client can answer “yes” to any of these questions, then the cost of the probate would be significantly higher than the cost of administering the Revocable Living Trust. Therefore, there is a potential for savings in using the trust as an alternative to probate.
Yes, probate is the court-administered process where, ultimately, your assets are distributed to the beneficiaries named in your Will. This process, however, takes between four months to one year to complete and can be costly.
Some people seek to avoid probate by re-titling assets with another person using a “right of survivorship” designation. Generally, to avoid tax and liability concerns, this method of ownership should only be used in a spousal relationship. A better approach is to add “Payable on Death” (POD) or “Transfer of Death” (TOD) provisions to bank and brokerage accounts to avoid probate on those accounts. You should speak with your banker or financial advisor. This method creates a beneficiary provision similar to insurance policies and retirement accounts. Accounts with valid beneficiary provisions avoid probate. If avoiding probate is a concern, then using a Revocable Living Trust, which we can add to your estate plan, is the best alternative.
Call our office at 727.398.4100 and schedule an appointment for an initial Estate Planning consultation. You will meet with attorney Michael Cahill to discuss your particular situation.
Generally, there is no charge for the initial Estate Planning consultation. In this meeting, we will discuss your situation and make any recommendations to create an Estate Plan or for changes to your current Estate Plan. We will also let you the how much the recommendations will cost. At that point, you can decide if you want to proceed.
You should bring any Estate Planning documents that you currently have, a list of your assets, the names of your beneficiaries, and the people who you trust to make decisions on your behalf. We will also need the addresses and phone numbers for your decision-makers. If you decide to proceed, you will need to provide a retainer typically one-half of the total cost of the work. Payment can be made in the form of cash, check, MasterCard, or Visa.
The material presented on the Cahill Law Firm, P.A. website is intended for informational purposes only. The material is not intended to constitute legal advice and viewing this information does not constitute the provision of legal services. Use of the material herein is not intended to create, and receipt does not constitute, an agreement to create an attorney-client relationship with Cahill Law Firm, P.A. or any member thereof. Any use of material contained herein without consulting with an attorney at Cahill Law Firm, P.A. is at the user's own risk.
Michael L. Cahill is an attorney and certified public accountant licensed to practice in Florida, providing estate planning, probate and tax services in the St. Petersburg, Seminole, Largo, Clearwater and Florida gulf beach communities.
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Seminole Florida estate planning attorney and certified public accountant for wills, trusts, living wills, powers of attorney, probate, trust administration, income tax, estate tax, gift tax and real estate contracts. 33708 33772