Below is a checklist of important Estate Planning documents and terms. If you are resident of Florida, it is highly recommended that you have your estate planning documents drafted by a practicing Florida Attorney.
Estate Plan Checklist and Important Terms
A judicial proceeding to change title on your assets. Attorneys and court fees can add up to approximately 5% of your net worth! Probate usually takes a year or longer to complete. Avoid it!
Will equals probate! Many believe their Will avoids probate. This is not true! Everyone needs a Will even if they have a Living Trust, just in case an asset is not titled correctly.
A document naming people who may access and retrieve your health care records.
Health Care Power of Attorney
Your Health Care Surrogate is the person who will make medical decisions on your behalf if you are unable to make those decisions. This document should include HIPAA Release Language. This will allow your surrogate to access medical records for your benefit.
Last Wills & Testaments
A Last Will & Testament is better than nothing. The last thing you want to have happen is to die intestate (without a will), which means your estate will be administered through probate by a default set of laws that predetermine who your personal representative (executor) and beneficiaries will be. The better strategy is to prepare a revocable trust and pair it with a shorter form of the Last Will & Testament called a “Pour-Over Will.” A Pour-Over Will is simply a safety valve to cover any assets held in your individual name and transfer them to your trust. Again, the goal is to transfer as many of your larger assets as possible into the name of the trust. But sometimes smaller assets are forgotten about or purposely left unfunded into the trust. No big deal if you have a Pour-Over Will because attorneys can use it in an inexpensive Summary Administration (remember not all probates are bad if assets total less than $75,000) to quickly transfer these assets to the trust.
Revocable Trusts or Living Trusts
When you hear the word “trust”, think “control”. Trusts allow you to pass your assets “to whom, when and how”.
If you have a minor child, then a trust is a necessary document.
If you have a taxable estate, then a trust is a necessary document.
Child Healthcare Surrogate
Did you know that physicians will often require a Child Healthcare Surrogate treat your minor child if left in the care of another person? This document names your child caretakers and gives them the power to take care of your children when you are out of town or unavailable.
This is your declaration to the world that you do not wish to be kept alive by extraordinary means. It works in conjunction with your Health Care Power of Attorney. A Living Will, by itself, could be dangerous if you have not named a Health Care Surrogate.
Durable Power of Attorney
This document names the person who can take care of all your financial needs while you are alive. This power ceases upon your passing. If your Power of Attorney is older than 1997 it may be useless. There is a new statute as of October, 2011. Your Durable Power of Attorney should be upgraded if it was signed before October, 2011.
The most frequent question that attorneys get asked is this: Why do I need a trust when all of my assets already avoid probate because they are jointly held? Although jointly-held property may technically avoid probate on the first spouse or individual to die, the same does not hold true for the second party to die. Jointly-held property is therefore only half of the estate planning solution and only delays formal probate to the spouse or individual lucky enough to survive with the entire value of the jointly-held property in their individual name.