A:        Having a Last Will and Testament or Revocable Living Trust allows you to determine how your assets will be distributed after you die; Wills and Trusts are often referred to as “testate” or “testamentary” documents.  If you do not have a Will or Trust, then the laws of the State of Florida will control the distribution of your assets; this is called “intestate succession” and is found in Chapter 731 – 735 of the Florida Statutes.

A:        One of the few constants in life is “change.”  Since January 1, 2020, federal laws affecting how Individual Retirement Accounts (“IRA”) are inherited have been revised twice under the SECURE Act and SECURE Act 2.0.  In addition, Florida’s legislature enacted the Florida Community Property Trust Act and Florida Uniform Directed Trust Act.  While legislative changes often occur, your own personal life may have experienced changes necessitating a review of your estate plan, such as if you moved to a new state, experienced the birth of a child or grandchild, etc.  Having your estate plan reviewed at least every 2 years is vital to ensuring it remains up to date with both the current law and your own personal needs and wants.

A:        Laws governing how estates are administered are different from state to state.  An estate plan prepared in your prior state of residency may not be appropriate under Florida law.  This is not to say your existing estate plan is invalid, but it may not be administered in a manner that works best for you or your beneficiaries.  Having your estate plan reviewed to determine if it is the best fit for your estate planning needs under Florida law can save your family thousands of dollars (if not tens of thousands of dollars) in legal fees, and months (maybe even years) when it comes to the administration of your estate.

A:        Over time we learn more about those we think we can rely on.  Maybe they prove themselves more capable than we expected, or maybe they prove they are less capable.  Periodically reviewing your estate plan to ensure the people you have chosen to fill key parts in your estate (e.g., Personal Representative, Trustee, Agent, Health Care Surrogate) is important because when the time comes and you need people to “step up”, are you confident they will be the best person for the job?  If not, then updating your estate plan to appoint the right people is vitally important.

A:        The people you appoint to fill various roles in your estate plan will be called upon to act at various times, whether this is during your lifetime after you have become incapacitated or following your death when you want assurance your estate planning directives are properly executed.  Do you know what their duties will be under given circumstances?  Odds are if you do not know, neither will they.  Working with an attorney at Marshall Law will allow you to understand each role, what skills are required, and what to look for in the person you appoint to such roles.  Not only will you understand what is required, but you will be able to make an informed decision as to who in your friends or family are best equipped to fill each role.

A:        Florida does not permit estate plans to contain “penalty clauses” that automatically disinherit or remove beneficiaries if they contest your estate plan.  This does not mean, however, every estate plan can be easily contested in Florida.  A knowledgeable and well-trained estate planning attorney will ensure questions about your mental capacity, whether you were “subject to undue influence”, what your true intentions in preparing your estate plan are addressed up front so as to minimize such arguments from arising later.  While no estate plan is foolproof, working with an attorney who understands the most common legal basis for challenging an estate plan and ensuring your estate plan is approached with those details in mind provides peace of mind.

A:        A well-crafted estate plan will be put together only after considering all the various tax issues surrounding the assets you own and your intentions for the distribution of those assets after death.  Although “estate taxes” have become less consequential in recent years, the type and nature of the other assets you own may still give rise to “income” and “capital gains” taxes if your estate plan is not properly structured.

A:        Having a Revocable Living Trust is only half of the issue; ensuring your Revocable Living Trust is properly “funded” (assets are owned by or made payable to your Trust upon death) is just as important.  Nonetheless, due to Florida’s unique assets protection laws, having assets owned by your trust prior to death may not be the best approach in all situations.  A knowledgeable estate planning attorney will work with you to ensure your Trust is funded while also utilizing other asset protection strategies available under Florida law.

A:        A well-crafted estate plan will define what it means to be “mentally disabled” so your Successor Trustee and/or Agent under a Power of Attorney know when to step up and handle your affairs.  This is also prevents the high costs, in both time and money, associated with obtaining a court determination of mental disability (or “incapacity”).  With the right parameters in place your chosen Successor Trustee and/or Agent know when to step up, have the guidance they require to know what they must do, and understand their authority to act.

A:        Most people think of an estate plan purely from the standpoint of “when I die”, but overlook addressing “what if I am still alive but incapacitated”.  Your estate plan should lay out clear instructions regarding the use of your assets to pay for your care, as well as the care of those who are dependent on you, whether such is a spouse, children or our four-legged friends.  Leaving such decisions up to the whims of another often leads to confusion and the improper use of assets (either spending too much or too little).

A:        Too often people assume a spouse or parent is automatically authorized under the law to make your health care decisions if you are incapable of doing so, but that is not true.  Everyone aged 18 and over should have well-drafted and properly executed health care directives in place that not only allow the people of your choosing to make your health care decisions in an emergency, but also authorize full disclosure of all your relevant and important health care information so your Surrogates can make the best and most well-informed decisions on your behalf.

A:        Estate planning is not just about assets, but about debts and liabilities you and your spouse may currently face or have at a future date.  This is especially important if the surviving spouse required extensive medical care, is on government benefits, or may be incapable of managing their finances on their own.  It is entirely possible to structure an estate plan to ensure the surviving spouse has all they require to meet their needs, and man of their wants, without jeopardizing those assets to medical debts or the claims of others.  While this may not be a primary concern when an estate plan is first created, over time situations may develop where this becomes a topic of great concern.  When such occurs, it is best to speak with a quality attorney to gain the insight and guidance necessary to protect your assets for the remainder of your life and the life of your spouse.

A:        While not a topic people like to discuss, it is important to consider what happens if you died and your spouse remarries.  Without proper planning a complete stranger, and their family, could end up with the assts you worked most of your life accumulating (which may also inadvertently leave your children with little to nothing).  A skilled and knowledgeable attorney will want to discuss this issue with you so you and your spouse can jointly determine the best method for preventing “unintentional disinheritance” from happening in your family.

A:        Too often estate plans leave assets outright to children, not considering the fact the situations their children are in today may not be the situation those children find themselves in at a future date.  With proper drafting, an estate plan can create opportunities for children to receive inheritance in a creditor-protected trust that allows a child to retain their beneficial interest in your estate without fear of a judgment creditor from taking it away from them.  This also incentivizes saving and reinvestment over rapid spending due to the fear of “if I don’t spend it, someone may take it from me.”  This is even more important when you have a child who is receiving government benefits.

A:        People all too often overlook that a “creditor” includes a child’s spouse during – or even after – a divorce.  While Florida law does not allow a child’s inheritance to be exempt from child support payments (and rightfully so), it does allow for reducing, if not altogether prohibiting, a child’s spouse from making a claim for alimony or support payments coming out of a child’s inheritance.  Likewise, care should be taken to ensure that if your child passes away their interest passes to their children but not under the custody and control of an ex-spouse.

A:        As children grow, their needs change.  An estate plan crafted when your child is 2-years old may be wholly unsatisfactory when that same child is 10-years old due to changes in environment, schooling, personal needs, etc.  In addition, the person you elected to be your child’s guardian may no longer be in the same mental or physical condition ten years later.  Reviewing and updating your estate plan to reflect changes in your child’s personal needs, as well as the ability of those you want to be your children’s guardian, should be reviewed on a regular basis, and be a topic of conversation with an attorney who understands both estate planning and guardianship law.