Florida Estate Planning Attorney
It is a common human response to avoid people, places, things, and circumstances that cause us anxiety and fear. For example, if a person is afraid of heights, he or she avoids high places. Because many individuals fear (or at least are uneasy with the concept of) their own mortality, it is therefore only natural for some people to avoid thinking about their inevitable passing. In fact, by some estimates, up to two out of every three Americans have not planned for their death by creating a will or estate plan. Unlike avoiding high places, however, ignoring the fact that you will one day die can have disastrous and tragic consequences for you and for your loved ones.
When a person dies in the State of Florida and he or she leaves no will or estate plan behind for his or her heirs and beneficiaries to follow, that person is said to have died intestate. A person who dies intestate has no ability to control how his or her assets are distributed upon his or her death. Regardless of what plans the person may have had to provide a gift to some person or entity, state law – not the person’s plans or desires – will control who gets what property. Not only can this situation result in property and assets being delivered to people the person did not desire to benefit, but it can also create significant and serious tax obligations that the person’s heirs and beneficiaries will need to address. Finally, failing to properly manage assets through a carefully-designed estate plan can cause those assets to unnecessarily depreciate in value. For all of these reasons, Largo residents should seek the services of the estate planning law firm of Centonzio Law, PLLC.
What is Estate Planning?
Estate planning involves much more than simply drafting a will. The process begins with the estate planning attorney gaining a comprehensive view of the assets a client owns and the value of these assets. The attorney and client then discuss what goals the client would like to achieve with those assets in the event of his or her death, with the attorney helping the client to understand what can (and what cannot) be legally accomplished. For example, the client may wish to provide funds for his daughter’s wedding in the event he passes before she is married. Another client may wish to provide for her son’s college education in the event she dies before he completes college. Still another person may wish to ensure his or her spouse is taken care of for the remainder of his or her life if the person were to suddenly die. Once the client’s goals are set, the attorney goes about creating and executing the legal documents necessary to create an estate plan that is designed to accomplish those goals.
Estate planning is more than just what happens after a person dies, however. In some cases, a serious illness or injury can leave a person incapable of making important financial and healthcare decisions. A comprehensive estate plan will address these contingencies as well. A person can designate another individual – a friend or family member, for example – to make these important decisions in the event the person is unable to make them because of a physical or mental condition.
Estate planning is not a one-time task, either. An experienced estate planning lawyer will advise his or her clients to review their estate plan with the attorney on a regular basis. As the years go by, people acquire new assets, marry and divorce, and/or have children. These events should be accompanied by a review and (if necessary) a modification to the terms of the estate plan.
Common Estate Planning Documents in Florida
Depending on your assets and goals, your estate plan may contain one or more of the following documents. Just because your estate plan may not include as many documents as another person’s estate plan does not mean that your estate plan is somehow deficient. A skilled and experienced Florida estate planning attorney will discuss with you what documents are necessary in order to ensure your wishes are carried out:
- A will is a document that simply appoints a person (an executor or representative) to distribute your assets in a certain manner upon your death. Wills have been in use for a considerable amount of time; however, with many individuals choosing to create living trusts, using wills to actually direct how assets are to be distributed is not as commonplace as it once was. A will is not appropriate for parents of young children, for example, who want to ensure funds are available to help support their children during the children’s childhood and young adult years. Despite the limitations of a will, most every estate plan – even estate plans that create living trusts – will have a will in order to direct the court and the person’s heirs and beneficiaries as to how to distribute any assets owned by the person at the time of the person’s death.
Florida law describes the requirements for a valid will. If any of these requirements are not met – if, for instance, the requisite number of witnesses do not sign the will or if the person creating the will (the testator) does not have the mental capacity to make a will, then the person’s will may not be recognized by the court. This is why it is important to have a knowledgeable attorney assist you in preparing your will.
- A trust is a legal entity created by a trust document (signed by the creator of the trust, usually referred to as the grantor). As its own separate legal entity, a trust can acquire property, dispose of property, and invest property even if the creator of the trust is no longer alive. Trusts are generally more complicated to establish than a will, but they offer greater flexibility in terms of disposition of property. For instance, a trust allows a grantor to provide an annual distribution or stipend for his or her surviving spouse and/or children for so long as the trust continues to exist. This can be extremely valuable if a parent is afraid his or her child will squander his or her inheritance upon reaching 18 years of age. Trusts are also valuable for those wanting to avoid probate or are concerned about protecting their assets.
In a typical trust, the grantor appoints a trustee and then describes how the trustee is to manage the assets and affairs of the trust. For instance, the grantor may direct the trustee to pay for the normal living expenses of the grantor and his or her spouse for as long as they shall live using the assets of the trust. When the grantor and his or her spouse pass away, the trustee may then be directed to pay for the reasonable living expenses of the grantor’s children until they reach a certain age. Thereafter, the remaining assets of the trust may be either given to the adult children of the grantor or distributed to various benevolent organizations and causes.
Trusts are nearly-useless unless the trust holds property in its own name. For this reason, an attorney’s assistance is usually needed in order to transfer property into the name of the trust. A trust is also usually accompanied with a “pour-over” will, which directs that any miscellaneous assets the grantor holds in his name at the time of his or her death are to be transferred to the trust.
There are various different types of trusts that can be created. The attorneys at Centonzio Law, PLLC can review your goals and situation and recommend the most appropriate type of trust for you.
- Health care advance directives: Most estate plans will also address what you would like to happen in the event that you are incapacitated (but not killed) and cannot communicate your medical care preferences to your medical treatment team. Your healthcare treatment wishes would be contained in a health care advance directive. In a living will, you would communicate your medical care choices and desires through a written document. You can describe what type of care you would like to receive in the event your primary care physician determines you to be incapacitated and unable to make such a choice on your own, including whether you would like to receive life-prolonging treatment. Other individuals may choose to complete a health care surrogate designation wherein the individual names a specific person or persons to whom the individual gives the ability and power to make medical treatment decisions on behalf of the individual if the individual is determined to be incapacitated. As one might expect, it is important to select a health care surrogate with extreme care and to ensure this person knows your desires and preferences regarding medical care (and is comfortable with following your wishes).
- Power of attorney. A power of attorney gives another person (an “agent”) the power to make personal and/or financial decisions on behalf of the person creating the power of attorney. These powers can include the ability to make banking deposits and withdraws, invest money, vote at corporate shareholder meetings, and purchase or sell real estate (for example). Because of the vast powers that this document can give to another, it is crucial that you designate a person you know and trust (such as a close family member or trusted friend) to be your agent. It is also wise to consult with an experienced Florida estate planning attorney to help you carefully craft this document so that you give your agent only those powers that he or she will need to handle your affairs. Additionally, a durable power of attorney may be more appropriate for your specific circumstance. A durable power of attorney remains effective even if the person becomes incapacitated. Unless your power of attorney contains special wording that makes it durable, it will terminate once you become incapacitated. This can cause major problems and lead to guardianship proceedings being commenced to have the court appoint someone to act on your behalf. Fortunately, you can avoid the need for a guardianship by ensuring that you have a durable power of attorney in place as part of your estate plan.
How to Tell if You Need an Estate Plan
In short, most adults could benefit from having an estate plan created to protect their loved ones in the event of a sudden death. Once created, however, your estate plan should not be neglected. You should regularly visit with your Largo, FL estate planning lawyer to ensure your estate plan continues to meet your needs and to update your estate plan as necessary. Specifically, your estate plan may need to be updated if:
- You recently acquired new assets of value, such as an additional or new home, real estate, or an inheritance;
- You became married or are recently divorced and have not updated your estate plan since the change in your marital status;
- You recently had a child or adopted a child;
- You recently became responsible for a parent or other adult and are responsible for providing care and support for this adult;
- In reviewing your estate plan you decide that you wish to change the manner in which your assets are distributed; and/or
- It has been several years since you have reviewed your estate plan with your attorney.
In changing your estate plan, it is important to remember that any previous estate planning document you may have created will need to be properly rescinded. Having two wills in existence at the same time (for example) can cause trouble for your heirs and beneficiaries later when a court will be called upon to determine which will is the one that will be admitted to probate. When you entrust your estate planning needs to the attorneys at Centonzio Law, PLLC, our team will ensure your estate planning documents are carefully drafted so as to leave no doubt in the minds of your heirs, beneficiaries, and the courts as to what your final wishes are.
Centonzio Law, PLLC is Your Florida Estate Planning Law Firm
No matter the size of your estate or the number of individuals to whom you wish to leave your property to upon your death, our legal team can assist you in crafting a personalized estate plan that protects you and your loved ones against unexpected illnesses, serious injuries, and/or death. You will be able to rest easy knowing that your estate plan is there to provide for you and your loved ones, even when you yourself are not able to do so. Contact Centonzio Law, PLLC today by calling (727) 490-8712; we are here to discuss your estate planning needs with you. Check out our Clearwater and St. Petersburg offices if you are near there.