How To Build A Comprehensive Estate Plan To Avoid Probate
Probate is the court-supervised process for administering and distributing assets after a person’s death based either on the decedent’s Last Will and Testament or the laws of intestacy. The proceedings are expensive, time consuming, and make the accounting and distribution of your assets a matter of public record. That’s why most savvy seniors are creating estate plans to avoid probate. Developing a comprehensive estate plan requires a high degree of legal knowledge and skill, so it’s important to hire an experienced and reputable Boca Raton estate planning attorney.
Revocable Living Trust
You can transfer most of your assets, such as bank accounts, brokerage accounts, and real estate into a Revocable Living Trust, so they pass to the next generation without the need for probate. This can be done without losing control of your assets because you can appoint yourself as Trustee of your Revocable Living Trust, making all the decisions about how assets are managed and spent during your lifetime. The trust document will also specify a Successor Trustee that will take over upon your death to distribute the proceeds to your intended beneficiaries. You can and should, also specify that the Successor Trustee shall take over management of the assets upon your incapacity. The revocable nature of this trust means that you can amend or terminate the trust at any time and for any reason, making it a very powerful and flexible estate planning tool. It’s important to speak to an experienced Boca Raton estate planning attorney to determine what assets are eligible for trust ownership.
Even after the most diligent preparation and updating, it’s possible that one may pass away with assets that have not been transferred to their trust. A Florida “Pour-Over Will” compliments a Revocable Living Trust by specifying that all of a person’s individually owned assets be transferred to their trust upon their death. This allows assets outside the trust to be distributed to beneficiaries, in accordance with the terms and conditions of their Revocable Living Trust. In addition, it can act as a back-up in case your trust is deemed invalid or is revoked before your death. It’s also possible to use a Florida “Pour-Over Will” to specify guardians for minor children. Estate planning documents must be carefully considered, well drafted and properly executed, so it’s important to work with an experienced and highly skilled Boca Raton estate planning attorney.
Durable Power Of Attorney (DPOA)
A Durable Power of Attorney is a crucial part of any comprehensive Florida estate plan because it enables a third-party (as your “agent-in-fact”) to handle your financial affairs if you become temporarily or permanently incapacitated. The agent you appoint has a fiduciary duty to act in your best interest to pay your bills, buy and sell real estate, trade stocks, or anything else you choose to empower them to do within the document. For large or complicated estates, it might be necessary to have more than one agent with different roles, such as a relative to pay routine bills and a financial advisor to handle a stock portfolio. Under Florida law, the authority to act on your behalf for certain types of matters such as making a gift or creating or changing beneficiaries requires a separately initiated document. If you regain capacity, you may revoke the Durable Power of Attorney and resume handling your finances yourself, but be sure to draft another one to replace it. Creating a valid Durable Power of Attorney is an important part of a comprehensive estate plan because it can avoid the need for a guardianship proceeding if you become unable to manage your affairs.
Designation of Healthcare Surrogate
These following two documents work together to enable you to have a voice in your health care if you become unable to speak for yourself. Designating a health care surrogate empowers the person you choose to access your medical records, discuss your medical condition with your doctors, and consent to medical procedures on your behalf. It’s also a good idea to designate a backup in case the person you choose is unavailable or unable to function in this capacity. The healthcare surrogate can be in place permanently for conditions like Alzheimers or temporarily for situations such as making decisions during a surgical procedure.
A Living Will is a document that provides guidance to your healthcare providers and healthcare surrogate about your wishes for end-of-life care. In Florida, your treating physician, plus another physician, must examine you and agree that death is imminent before procedures may be withdrawn or withheld. Once this is established, your wishes regarding withholding, providing, or withdrawal of life-prolonging procedures should you be in an end stage condition or a persistent vegetative state, can be carried out with the advice of physicians, and through the voice of your healthcare surrogate.
Designation of Pre-Need Guardian
In Florida, you may choose to designate a pre-need guardian to take care of you if you are designated as incapacitated by a Florida court. Having a Designation of Pre-Need Guardian document in your estate plan can act as a deterrent to an unscrupulous person that initiates a guardianship proceeding, hoping to be named guardian and thus control your assets. It’s also important if you believe that your spouse, a sibling, a home health aide, or an adult child is untrustworthy due to mental health issues, financial pressure, substance abuse problems, or other issues. To avoid poisoning the relationship with a family member, it is more diplomatic to select several people you would choose rather than naming anybody as unsuitable. It’s important to note that you cannot appoint a pre-need guardian that would not be qualified under Florida law due to their criminal record, status as a creditor, or other reasons. The court will have final say about the appointment of a guardian, but usually appoints the individual selected in a validly executed Designation of Pre-Need Guardian document.
HIPAA Waiver & Authorization
The Health Insurance Portability and Accountability Act, known as HIPAA, contains important privacy protections for patients, but HIPAA can create roadblocks when a person suddenly becomes incapacitated due to the caution needed to avoid the severe penalties for health care providers that fail to comply. That’s why it’s prudent to include signed HIPAA waivers and authorizations for an individual you select to have access to your medical records. It’s important to work with an experienced Boca Raton estate planning attorney that can ensure that your plan is comprehensive and updated when necessary.
In order to avoid probate, your real estate assets must be properly transferred to the ownership of your trust. This transfer is accomplished after a proper title search and a carefully drafted Warranty Deed has been drafted and duly executed. Thereafter, the new Warranty Deed is recorded in the public records in the county where the subject property is located. It’s important to discuss this issue with your Boca Raton estate planning attorney who can advise you about the level of protection that’s appropriate for your property transfer.
IRA Beneficiary Trust(s)
An IRA Beneficiary Trust offers significant protection from creditors that can pass to your beneficiaries. This instrument has become more popular due to recent court decisions allowing creditors to attach to a beneficiary IRA. This specialized trust must be carefully drafted to include the “spendthrift” provisions that protect the inherited retirement assets from the beneficiary’s potential future creditors. An experienced Boca Raton estate planning attorney can help you draft an effective IRA Beneficiary Trust.
Boca Raton Estate Planning Attorney
One of the greatest gifts you can give your beneficiaries is a comprehensive estate plan that avoids time-consuming and expensive probate proceedings. In order for an estate plan to avoid probate to be successful, every document must be carefully drafted and properly executed. That’s why it’s important to work with an experienced Boca Raton estate planning attorney.