Estate planning is wise. It’s important, but generally not urgent, so implementation tends to get delayed. A parade of horribles can occur with inadequate estate planning.
Primary documents in many estate plans include:
Trust Agreement. The Trust Agreement creates what is typically referred to as a "Living Trust." The Trust Agreement is entirely revocable and amendable by you during your lifetime, but becomes irrevocable at death. Any property that you transfer to the Trust during your lifetime will avoid probate upon your death. Property that you do not transfer to the Trust will be subject to probate, but may pass to the Trust through the probate process (under your Will). The Trust Agreement contains the provisions governing disposition of your property upon your death. It provides for gifts, creates trusts, names successor trustees, and sets forth your instructions to the trustees. Your important estate tax planning is also accomplished through the Trust. Typically, you are the initial trustee of the Trust. You reserve the right to remove and appoint trustees during your lifetime and to designate who will serve as trustee in the future.
Will. The Will governs any property held in your individual name at death. It provides for the administration of that property, and directs that whatever remains after the payment of your debts, expenses of administration, and estate taxes be added to your Revocable Trust (commonly referred to as a "pour-over Will").
Alternatively, there may just be a will (no trust), which provides for the administration of that property, and directs that whatever remains after the payment of your debts, expenses of administration, and taxes be paid to whatever persons or charities you may desire. We have seen endless tragic circumstances where a Decedent’s wishes are not carried out, either because there’s no will, or the will is defective.
Durable Power of Attorney. The Durable Power of Attorney names others to serve as attorneys-in-fact, to deal with matters affecting your property. They are given the power to act on your behalf. Typically, numerous types of transactions are spelled out to eliminate any question as to the broad scope of their authority. Being a "durable" power means that your attorneys-in-fact are authorized to continue to act while you are incapacitated (unless, in some cases, if a guardian is appointed for you).
Designation of Health Care Surrogate. The Designation of Health Care Surrogate names others to act for you if you become unable to make medical decisions for yourself.
Living Will. The Living Will states your wishes regarding the use of life-sustaining measures if you become terminally ill. This can be very detailed as to what you do or don’t want, or it can give broad powers to another to make that decision.
Declaration of Preneed Guardian. The Declaration Naming Preneed Guardian nominates the person of your choice in case you are ever in need of a court-appointed guardian. This tends to dissuade any family member from even filing a Guardianship case against you, as the petitioner would likely not be appointed.
Enhanced Life Estate Deed - in some cases, this is a very effective way to pass real estate to loved ones. It has the benefit of a Trust (avoids probate) and it has tax benefits (avoids capital gains taxes) and it is revocable, like a trust. But it is considerably less expensive than a trust, and is a good fit for some families. There are complicated pluses and minuses to consider.
Russell R. Winer, Attorney-at-Law
520 4th Street North, Suite 102
St Petersburg FL 33701
Toll Free Number: 877-591-6800
806 N Armenia Ave
Tampa, FL 33609
Phone: (813) 933-5700
Fax Toll Free: (866) 774-2476