Fort Myers Estate Planning Attorneys
The Dorcey Law Firm, PLC Estate Planning Process & Legal Strategies
There are many legal strategies involved in estate planning, including wills, revocable living trusts, irrevocable trusts, durable powers of attorney, and health care documents. New clients often say that they do not have an estate plan. Most people are surprised to learn that they actually do have a plan. In the absence of legal planning otherwise, their estate will be distributed after death according to Florida’s laws of intestacy. Of course, this may not be the plan they would have chosen. A properly drafted estate plan created alongside one of our Fort Myers estate planning attorneys will replace the terms of Florida’s estate plan with your own. Request a consultation for your estate plan today.
wills, trusts, powers of attorney & health care documents
Your Last Will and Testament
Your last will and testament is just one part of a comprehensive estate plan. If a person dies without a will they are said to have died “intestate” and state laws will determine how and to whom the person’s assets will be distributed. Some things you should know about wills:
- A will has no legal authority until after death. So, a will does not help manage a person’s affairs when they are incapacitated, whether by illness or injury.
- A will does not help an estate avoid probate. A will is the legal document submitted to the probate court, so it is basically an “admission ticket” to probate.
- A will is a good place to nominate the guardians (or back-up parents) of your minor children if they are orphaned. All parents of minor children should document their choice of guardians. If you leave this to chance, you could be setting up a family battle royal, and your children could end up with the wrong guardians.
Trusts: Revocable Living Trusts, Irrevocable Trusts, Testamentary Trusts, Special Needs Trusts, etc.
Trusts come in many “flavors,” they can be simple or complex, and serve a variety of legal, personal, investment or tax planning purposes. At the most basic level, a trust is a legal entity with at least three parties involved: the trust-maker, the trustee (trust manager), and the trust beneficiary. Oftentimes, all three parties are represented by one person or a married couple. In the case of a revocable living trust, for example, a person may create a trust (the trust-maker) and name themselves the current trustees (trust managers) who manage the trust assets for their own benefit (trust beneficiary).
Depending on the situation, there may be many advantages to establishing a trust, including avoiding probate court. In most cases, assets owned in a revocable living trust will pass to the trust beneficiaries (or heirs) immediately upon the death of the trust-maker(s) with no probate required. Certain trusts also may result in tax advantages both for the trust-maker and the beneficiary. Or they may be used to protect property from creditors, or simply to provide for someone else to manage and invest property for the trust-maker(s) and the named beneficiaries. If well drafted, another advantage of trusts is their continuing effectiveness even if the trust-maker dies or becomes incapacitated.
Powers of Attorney
A power of attorney is a legal document giving another person (the attorney-in-fact) the legal right (powers) to do certain things for you. What those powers are depends on the terms of the document. A power of attorney may be very broad or very limited and specific. All powers of attorney terminate upon the death of the maker, and may terminate when the maker (principal) becomes incapacitated (unable to make or communicate decisions). When the intent is to designate a back-up decision-maker in the event of incapacity, then a durable power of attorney should be used. Durable Powers of Attorney should be frequently updated because banks and other financial institutions may hesitate to honor a power of attorney that is more than a year old.
Health Care Documents (or Advance Directives)
An advance directive is a document that specifies the type of medical and personal care you would want should you lose the ability to make and communicate your own decisions. Anyone over the age of 18 may execute an advance directive, and this document is legally binding in Florida. Your advance directive can specify who will make and communicate decisions for you, and it can set out the circumstances under which you would not like your life to be prolonged if, for example, you were in a coma with no reasonable chance of recovery.
A document that goes hand-in-hand with your advance directive is an authorization to your medical providers to allow specified individuals to access your medical information. Without this authorization, your doctor may refuse to communicate with your hand-picked decision maker.
The Dorcey Law Firm Estate Planning Process
FOUNDATIONAL ESTATE PLAN
If you are a person that desires to create or amend a carefully drafted estate plan for the future that will carry out your wishes in an efficient and caring way, the Foundational Estate Plan might be for you. The Foundational Estate Plan is designed for the person that wants to establish a plan that will help avoid the often unnecessary expense, delay and public nature of the probate process, provide an efficient avenue to transfer assets after death, and ensure that the people of their choosing will care for their loved ones and beneficiaries. If the base elements of the Foundational Estate Plan intrigue you, then you will probably want to consider providing varying levels of protection for your heirs, albeit from Medicaid, judgments, creditors, and bankruptcy. Also, in the event of your incapacity or incompetency your affairs can be privately managed by the people that you choose. Lastly, as part of your carefully designed plan, our office will assist you in funding or coordinating your assets into your estate plan and you will be eligible to join and receive the benefits of our Auto Pilot Planning program.
If you are a person intrigued by the elements of the Foundational Estate Plan but you also desire to protect your assets while you are alive and may need minimal federal or state estate tax planning, the Family Protection Plan might be best for you. The Family Protection Plan includes the applicable elements of the Foundational Estate Plan plus it includes the base elements of a full fledge asset protection plan to protect your Non-Qualified Taxable Retirement assets while you are alive, your non-homestead Real Estate or rental property while you are alive (if applicable), and your Qualified Retirement Accounts (IRA’s, 401K’s etc.,) from lawsuits, judgments, creditors, and potentially future spouses of your beneficiaries. The implementation of a Family Protection Plan allows for you to customize the share for each child, grandchild or heir to include period lump sum triggers, income match incentive provisions, beneficiary controlled trusts, independent professional trustees and specific letters of wishes to the trustee. The Family Protection Plan is more about protecting your heirs and your assets than it is about controlling from the grave. Although control can be utilized it would be an enhancement to this Plan. Lastly, the Family Protection Plan may also include the protections afforded by naming guardians of your minor children or dependents (if any) and a foundational Medicaid or government assistance protection plan for your loved ones. As part of your carefully designed Family Protection Plan, our office will assist you in funding or coordinating your assets into your plan and you will be eligible to join and receive the benefits of our Auto Pilot Planning Program.
If you are a person that aligns your interest with the ideals of the Family Protection Plan but because of life circumstances and current tax laws you also need considerable federal and state estate tax planning then the Family Legacy Plan is probably for you. The Family Legacy Plan combines the elements of the Foundational Estate Plan and the Family Protection Plan but due to the tax ramifications on your financial legacy it enhances the plan to be more specific to help preserve your family values and financial legacy from larger predators including the IRS. The Family Legacy Plan can also provide a more robust personal asset protection plan which may include the use of Domestic or Offshore Asset Protection Trusts as well as some of the most cutting edge techniques available to reduce and potentially eliminate your estate tax exposure. Trusts designed under the Family Legacy Plan can provide bloodline trusts that can protect multiple generations (currently up to 360 years in Florida) from lawsuits, creditors and predators, divorces if we utilize laws of different states, Generation Skipping Tax avoidance for your full exemption amounts (currently for 100 years in Florida) and the ability to pass your financial legacy onto your children, grandchildren or heirs, preparation for eventual consequences if estate taxes are owed to your northern state or the IRS, and potentially charitable gifting by way of charitable trust, family foundations or direct gifts.