We blog often about having an “estate plan,” why you should do it, and why it is important. However, many people do not understand what it is to have an estate plan. Many think that you have to have a lot of money in order to do an estate plan.
If you can answer “yes” to any of these questions, you may need an estate plan:
- Do you want to control who gets your assets (bank account or other investments, jewelry, vehicles or other personal property, your house, etc.) when you die?
- Do you have anyone that you want to exclude from getting your assets when you die?
- Do you have children that you are concerned cannot handle money they might receive from you after you die and you would like to control how the money is managed?
- Do you want a particular person making financial decisions for you if you become incapacitated? What about health care decisions?
- Is there someone you do not want making decisions for you if you become incapacitated?
Do you want to control things from the grave?
I joke with people that having a Will or a Trust can allow you to control things from the grave. But seriously, that is what a Will or Trust can do. If you want to make sure that a certain person gets your house or your bank accounts, and you do not have a Will or a Trust, your assets may go to someone you did not intend to have them. For instance, you may have three children, but you want everything to go to the one child who has helped to take care of you. If you do not have a Will, Florida law says that your assets would be distributed equally to your children (assuming you do not have a spouse). Or perhaps you have a second marriage, but you want everything to go to children from your first marriage. If you do not have the correct estate planning in place, your spouse may get 30% to 50% of the assets, even though you wanted everything to go to children from your first marriage.
Do you have minor children, a disabled child, or an adult child who cannot handle money?
In such an instance, if you want to control how the money your children received is distributed to them, you may want to consider creating a Revocable Living Trust (Trust). A Trust can be set up any way that you like and you can control how the money is used. If you have minor children, you can set up the trust so that the money is used to care for your children’s health, education and welfare, and then you can state at what ages and over what period of time that they receive outright distributions. If you have a disabled child that is receiving SSI and Medicaid benefits, you can use your Trust to set up a special needs trust for the disabled child so that they do not receive their inheritance outright and possibly lose their government benefits. Trusts are an excellent way to provide for family that may not be able to handle the money on their own. .
Are you concerned about who can make financial or health care decisions for you if you can no longer make those decisions?
Part of every good estate plan is to have a well-drafted Durable Power of Attorney, Living Will and Health Care Surrogate Designation. These documents help to ensure that someone can take care of you if you become incapacitated. The Durable Power of Attorney allows you to give someone the ability to make financial decisions on your behalf. For instance, what if you can no longer afford to live in your home due to an illness and have to move? The Durable Power of Attorney can give someone the authority to sell your real estate on your behalf. It can also allow someone to have access to your bank accounts so they can pay your bills. Without it, if you become incapacitated, your family may have to go to court and have you declared incapacitated and have someone appointed to be your guardian who would have the authority to make decisions for you. This can be an expensive and time-consuming process.
By the same token, a health care surrogate designation allows you to name someone who can make health care decision for you if you are unable to do so. You can also make your wishes clear about whether you want life prolonging procedures to keep you alive if you are terminal, end stage or in a persistent vegetative state. Without such documents, your family may have to file for guardianship to make decisions.
If you would like to learn more about estate planning and how it can set your mind at peace, please call the Law Offices of Laurie E. Ohall, P.A. and speak to one of our knowledgeable attorneys for free. We offer a free 15 minute telephone consultation to answer your general questions and give you an idea of how we can help you. Call us at 813-438-8503.