What is Estate Planning?
One definition of estate planning is as follows:
I want to control my property when I am alive and well;
And I want to plan for myself and my loved ones if I become disabled.
I want to:
Give what I have
To whom I want
When I want
The way I want
All while assuring my wisdom is transferred along with the rest of my wealth.
The truth is that everybody in the state of Florida already has an estate plan. The State of Florida knows that everybody dies, and everybody has things. They don’t want your things lying around after you die, so they have already decided who will get them. To insure your property gets distributed, the state also supervises the distribution through a process known as probate. Probate can take a long time, can be expensive and is public.
— If you don’t like the plan the state has developed for you, you can develop your own plan. You do this by writing a will. In this case you, rather than the state, decide who gets your property. Even if you have a will, however, the state will still supervise the distribution through the probate process.
— You can develop your own plan and avoid probate by establishing a Revocable Living Trust. In this case, you appoint a trustee to supervise the distribution of your property rather than having the probate court do it. The process is private, quick, and much less expensive than probate. There are several additional benefits of a trust. Besides avoiding probate, property in the trust is protected from creditors of the beneficiaries. It is also protected from a beneficiary’s divorce settlement. Finally, as the name implies, it is revocable. It can be changed or amended and property can be put into it and taken out of it at any time.
– Some of the most important forms of estate planning concern incapacity. An accident, stroke or the onset of dementia may render you unable to act on your own behalf or communicate your wishes. A living will tells your family and medical professionals what types of care you do or do not want if you are in a terminal condition, the end stage of a disease or a persistent vegetative state. A Designation of Healthcare Surrogate allows you to appoint an agent (surrogate) to make medical decisions for you if you are not able to do-so on your own. A Durable Power of Attorney allows you to appoint an agent to make financial decisions for you if you cannot make those decisions yourself.
Estate planning can allow you to transfer your property to your spouse or children or other individuals in any way you like.
Those of us who have minor children, want to have them cared for by someone we have chosen if we pass away. We don’t want the court to make that choice for us. In a will you can appoint a legal guardian for your minor children if you are unable to care for them.
Many people have preferences about how their remains are disposed. Proper documentation that outlines those preferences will allow those preferences to be fulfilled. Some may wish that their organs or parts be donated as needed. Others may just want to specify cremation or burial. Estate planning can cover these details.
When Should I Start My Estate Planning and/or Will?
While I could tell you there is no rush, I really don’t know. We all know we are going to die, but do any of us know when? Every night the news is full of stories of people that were involved in serious accidents that day. Did any of them know beforehand that it was going to happen to them – that day? You should start planning as soon as possible. Importantly, you should do it when you possess all of you faculties and are of sound mind. If you wait until you need it, it is too late.
Do You Need to Hire a Lawyer for Your Estate Planning Process?
An experienced estate planning attorney can help you develop plans that will function the way you want and need them to. Sometimes clients come to me with wills or powers of attorney that they downloaded from the internet. Often they are not suitable and will not perform in the way the client wants. Every state has specific rules and procedures that dictate how a will is to be executed. If these rules are not followed, the will is not valid. For example, in Florida the attesting witnesses must sign the will in the presence of the testator and in the presence of each other. If one witness were to excuse themselves to use the restroom while the other was signing the will, it would not be valid. I have seen wills that were signed and dated by the testator one day and signed and dated by the witnesses the next day. These were not valid wills. It is important to realize that every state is different. The rules in Ohio may not be the same as those in Florida.
Another thing the estate planning attorney adds is experience. A person may think that they have such a simple situation that they do not need assistance. For example, suppose you write a simple one line will that leaves everything to your spouse but your spouse dies before you do. What then? Sometimes clients will say they need a will, but after we talk, they realize that a trust is more appropriate for their needs. They did not even consider the need for Powers of Attorney or a Living Will. Estate planning is not the place to try to save money. As my father used to say (over and over), if it is worth doing, it is worth doing right. Cheap and simple now often means expensive and complicated later. Of greater concern, cheap and simple now may produce an outcome that cannot be fixed, no matter how much it costs.
A team effort often produces the best results. A successful estate planning process may also involve financial advisers, bankers, or the client’s accountant.