Many clients that we work with think that if they live in Florida and have signed a Florida Last Will and Testament, they no longer have to worry about a probate in Florida.
As Chris Rock can attest, Wills are often a big “slap in the face” to the assets you are trying to protect. In Florida, assets that pass under the terms of a Last Will and Testament have to go through a process known as probate.
Florida Estate planning and Florida elder law planning are two distinct areas of law that often overlap, as they both involve preparing for the future and ensuring the well-being of individuals and their families. However, they have different areas of focus.
Florida Estate planning lawyers primarily deal with the management and distribution of an individual’s assets upon their death. Key components of estate planning include:
Addiction is a serious illness that effects millions of families. Over 7,000 people died from overdose in Florida in 2020, the second most of any state (Statistics from Riverside Recovery, Tampa). Aside from illicit drug use, addictions to gambling, alcohol, or prescription medications can be just as dangerous and no less destructive in the lives of those who struggle with them and their families.
Our natural instinct is to care for our family and loved ones as best we can for as long as we can. For families facing struggles with addiction, Estate Planning can often be more complex than for those without. In many cases, families want to avoid the unsupervised transfer of large lump sums of cash or valuable assets, which can have the potential of doing more harm than good in the beneficiaries’ life.
Families who struggle with a loved one’s addiction know the potential dangers of temptations that can come with having access to cash or transferable assets in that person’s life. Especially during an already very stressful time in their lives. Fortunately, in Florida, you are able to utilize Trust Agreements as part your estate plan which can protect your family’s cash and valuable assets while still providing for essential needs, ongoing care, and even treatment as needed, of loved ones facing addiction after you’re gone.
There are many reasons you might consider giving your adult children a portion of their inheritance now while you’re alive and well. Maybe you’ve seen your nest egg grow thanks to a robust stock market, and you have more in savings than you thought you would at this stage of your life. Perhaps you and your spouse enjoy excellent health and have received nothing but good checkups for years, so you’re not overly concerned about medical expenses. Or maybe you just want to be there to experience how your financial assistance helps your children pursue their dreams and achieve their goals. Do you really want to set the stage for the family drama that could unfold by violating the “fairness principle?”
Of course, you could tell the recipient of your gift, along with your other adult children, that the gift will be deducted from the recipient’s inheritance when you pass away. This might solve the problem, but then again, it might not. As you’ve no doubt learned by now, your “kids” may be grown up, but that doesn’t mean sibling rivalries and other powerful emotions from childhood simply disappear.
While many parents would like to help their adult children financially as much as possible, before acting on your generous inclinations, you should consider a number of potential problems.
While many do not think all of the “For the 99.5% Act introduced by Bernie Sanders plan on March 25, 2021 will become law, there is certainly concern over the gifting and estate tax portions which would seem to affect more than just the upper 1/2 percent of the US population. This is the first attempt at legislation following Joe Biden’s election that could lower the federal estate tax exemption. There are many changes and various dates when the changes would take place:
For those who die or make gifts after December 31, 2021.
The Miami Herold is reporting the there is a surge in people asking for wills to be written.
The article states:
Lawyers are being bombarded with requests to write wills, update estate plans and prepare health surrogate or “pull the plug” documents as people are confronted by the realization that they could be diagnosed with COVID-19 and dead within days.
Have you lost your job because of the Coronavirus?
Why Estate Planning matters during the Coronavirus (COVID-19) and what you can do to prepare.
On March 17th, the outbreak of Coronavirus has grown to at least 4,226 cases, and numbers are still growing. According to the CDC, Florida alone is ranging from 101-200 reported cases, and the elderly is a suspectable target. The elderly and those with any underlying medical problems such as high blood pressure, heart problem, and diabetes are more like to see an increase in this serious illness. As Coronavirus continues to sweep through the nation, this leaves many individuals with the feeling of uncertainty. Many advisors are continuing to tell individuals to “stay the course” and ride this rollercoaster out. This advice leaves people uneasy when looking back from the lessons that were learned in 2008. Time is valuable right now to take action for this pandemic. We have an obligation to prepare and protect our loved ones in this infectious crisis. While this topic is always a hard conversation to have, estate planning is now more than ever a critical tool that can be used to assure that your wishes are carried out in the event of death or incapacity. There are four essential estate planning documents that can help ease the uncertainty of this pandemic and provide a plan for the Coronavirus.
A Healthcare Durable Power of Attorney: A Power of Attorney is a legal document that gives someone you choose the ability to have the power to act on your behalf and make decisions. This can be done through a Healthcare Durable Power of Attorney, which is essential during an outbreak like Coronavirus. This will ensure that you receive the healthcare needed if you become ill. Until May 1, we are offering a free Healthcare power of attorney with COVID-19 specific provisions. See this article.
In Florida, an estate plan provides you a plan for what happens to your assets at your death. Another crucial part of your estate plan, specifically your will, is where one nominates who will be the guardian of any minor children. Although the court will decide what’s in the best interest of the child(ren), having an estate planning document that details your preference in place will hold considerable weight. Estate planning is important for anyone with legal capacity, whether it may entail power of attorney or medical care or extend to a full-featured plan, which would include trust and a will. Today, with the current situation with COVID-19, it is more important than ever to have a Medical Power of Attorney that permits the use of experimental, non-FDA-approved medications for the treatment of COVID-19.
While preparing a will or a trust is essential, it is also important to consider coordinating beneficiary designations on life IRAs, insurance, retirement plans, etc. A will should also include planning during your lifetime and in case of your incapacity. Often the creation of an estate plan involves an array of topics such as asset protection and qualification for public benefits for the client, or the client’s loved one. Often, spouses will take it upon themselves to devise a plan online without the proper instruction; let’s go through a scenario.
Here, we have Tyler and Debra, who created an online package plan. In this package, they prepare a trust and retitle the brokerage account and house into the name of the trust. The couple also prepares wills. While preparing, each document language states that it will include everything left to one another at the death of the survivor and divided assets among their three children. Tyler and Debra felt they had a great plan in place and would have no concerns involving probate. One thing they did not consider is that they could not change the ownership of Debra’s IRA during her lifetime. The first mistake was not checking the beneficiary designations on the IRA. Before Debra married Tyler, she had a boyfriend known as a beneficiary of her IRA. This caused Debra’s previous boyfriend to obtain the bulk of the IRA asset, not her current husband, Tyler. This situation happened even though Debra named Tyler as the primary beneficiary of all her assets in her will and trust. Situations like these always happen and demonstrate why revisiting your plan and making changes to previous beneficiaries is vital.
For several years the VA has been working on changes to the rules for qualification of certain benefits dealing with transfers, a look back period, assets in trust, and income. Tomorrow the following rule change will be published, watch for some analysis on this and how it has changed in the next few days.
You can download a copy of the new rule here 2018-VA Rule Changes
Florida Estate Planning Lawyer Blog