Warm Weather Special for Estate Planning
Warm Weather Special for Estate Planning
My Estate Planning Professor used to talk about “Warm Weather Specials” for the Summer, when clients would call on the spur of the moment, leaving the next week (or day), needing to create or update an estate plan.
Word processing helps speed of delivery of course, but that’s not estate planning.
Fortunately, if we can consult with the client and get needed information on assets, income, liabilities, goals, needs, client’s health, and family, we can move pretty quickly in our office to get them planned and on the road. However, notwithstanding a plan being up to date, what I’ve found is that the clients often don’t take on the road with them what they might really need for their summertime travels.
So here’s my attempt at a basic estate/elder law planning survival kit for your Summer vacation:
First, take your health care advance directives, Medicare and/or Medicaid cards, Driver’s License or State Identification Card if you don’t drive anymore. To further clarify, in Florida your health care advance directives would typically include a living will, a health care surrogate designation, and a HIPAA or general medical release. Running out of room already in your fanny pack? Try my friends at LEGALDIRECTIVES, LLC, which provides a simple but brilliant “Medical Access Program” via electronic storage and delivery (at the time of need) of those advance directives. Here’s a link to their site: https://www.legaldirectives.com/index.php. In fact, we think so highly of their services, we provide for you to be enrolled automatically when you choose to prepare your Revocable Living Trust plan with our office. Their Emergency Medical Information Card goes in your wallet next to your id and health care insurance cards, to complete your road travel kit for health care.
Oh, one other thing: I always forget something when I travel. If, unfortunately, you are under a Florida “DNR” order from your physician, please remember to take a hard copy of that with you. Otherwise, EMR teams will do what they by law otherwise have to do to keep you going in the event of an accident, medical episode or other trauma during your vacation.
I’m also big on your carrying emergency contact information for family, neighbors, attorney, CPA, priest/minister/rabbi, co-workers, attorney-in-fact, and others whom you might need to contact to handle things for you in your absence, or to coordinate things for you back home in the event of an unexpected emergency or occurrence. Most of us now keep that information on our cell phone now. If so, make sure that your spouse or travel companions know how to access that information for you, if needed, and if you are out of it at the time of need. If you want the A+, you can even scan and take your emergency contact list and directions with you from your estate planning notebook as a pdf document on your smartphone, flash drive, personal tablet, or as a printout stuck in your Bible or pleasure reading materials.
Again, make sure that is findable by others with you in case you are personally out of it at the time of need!
Based on my own recent travels last weekend to historic Ft. Caroline area in Jacksonville, FL, and then beautiful Gainesville, FL, you also might want to take a mosquito net, bug spray, first aid kit, and sunblock as well!
And from a consumer law standpoint, remember not to buy any timeshares while on vacation. Those are never a good idea for very long. You’d be able to stay in a lot of 3 to 5 star hotels for what you’d pay for one of those. If you forget the last three sentences, remember to rescind the timeshare purchase in writing timely prior to midnight on the third day after the purchase, and not 4 months later when you finally get back in town and come to see me to do so for you. It might be a little late, then (but we can try)! Also, don’t count on your credit card company to back you up if you lose faith in the timeshare seller. The credit card lender is real good about saying “That’s a civil dispute that you’ll have to resolve with the seller”, absent an absolute fraudulent transaction, approaching criminal activity by the seller, which fortunately in rare, but not without precedent.
Keep safe out there this summer, and obey the rules of the road as you go. Good luck and God Bless!
Don’t be a victim of one size fits all planning. Know your legal rights on estate planning and act accordingly!
For more information, please consult our website: www.floridaelder.com.
Grady H. Williams, Jr., LL.M.
Attorneys at Law, P.A.
1543 Kingsley Ave., Ste. 5
Orange Park, FL 32073
Phone: (904) 264-8800
Fax: (904) 264-0155
Email: grady@floridaelder.com
Following up from my last blog post, assuming you are mentally and physically “vertical” when you come in for your estate and elder law plan with our office, you will be able to create your own plan for disability or chronic illness. Legally, you call your own shots as long as you are able to.
What about when you cannot do so any longer? What is the best way to address that possible risk?
Elder law planning is very holistic in nature, seeking the most practical, cost effective, long range solution to each particular client’s and family’s own situation. Also discussed last time were Florida’s Durable Power of Attorney (“DPOA”) act, as set forth in Florida Statutes Chapter 709, Part II (ss. 709.2101 – 709.2402); Florida Guardianship, covered by Chapter 744 of the Florida Statutes; and the Florida Trust Code, now covered by Chapter 738 of the Florida Statutes.
Here’s a main link to the 2011 Florida Statutes online, and you can navigate further from there as desired, or review Part 1 of this blog for specific links: http://www.leg.state.fl.us/statutes/
“So how do the DPOA, Guardianship of the Property, and Trust laws work together in a particular planning case?”
Let’s look at a few examples to compare and contrast.
Example 1: Betty Brown has no legal advance planning in place. However, her daughter is a joint owner on Betty’s primary credit union account. Betty’s daughter can therefore write and sign checks for Betty at any time, including at the time of Betty’s incapacity. All other things being equal, Betty’s daughter would also succeed her to that account as the sole owner upon Betty’s death. The downside is that Betty’s credit union account is exposed to garnishment to satisfy any judgments against her daughter, which should not be acceptable to Betty from an asset protection standpoint, unless Betty keeps a very small balance in that particular account. That risk could have been avoided if Betty’s daughter either held a DPOA for Betty, or if Betty had simply designated her daughter as her “Agent” on the signature card for that account, versus making her daughter a co-owner of the account. Also, Betty could have designated that her daughter still receive the account upon Betty’s death by naming her daughter as the beneficiary of that account, often abbreviated as “POD”, “TOD”, or “ITF.” No post-mortem probate for Betty is involved here.
Example 2: Wilma White has a Revocable Living Trust (“RLT”). Her main account at the credit union is styled “Wilma White, Trustee of the Wilma White RLT.” Her daughter is the Successor Trustee under Wilma’s RLT. Wilma alone would be authorized to sign checks on the account as Trustee. In the event of Wilma being unable to continue to serve as Trustee of the RLT, as set forth therein, Wilma’s daughter would have to present basic evidence to the credit union to show that she was then succeeding Wilma as the current active and serving Successor Trustee as to that account styled in the RLT. (Note: Most credit unions will have the customer complete a basic form identifying the Successor Trustee of the RLT in advance, at the time of account set up, to ease the transition of the account as needed in the future.) Upon Wilma’s death, her daughter as Successor Trustee of the RLT will hold, manage, invest, and distribute the account proceeds as Successor Trustee in accordance with the terms of the RLT. No post-mortem probate for Betty is involved.
Example 3: Rhonda Reed had no advance legal documents in place and no joint ownership or agency designation in place as to her primary bank account. She has three children who live out of town. In the event that Rhonda becomes unable to manage her own affairs, and unable to access or deal with her bank account, then a legal incapacity proceeding and guardianship action would be necessary before her bank account could be further utilized. Obviously, there can be many variations on the theme for Rhonda’s situation, but the children are obviously Rhonda’s next of kin and would have priority under Florida Guardianship law to be appointed as an emergency and permanent guardian(s). If there is agreement among the children, then the Guardianship Court would likely go with the children’s agreement as to the appointed Guardian. However, if there is not agreement, then the Court may essentially conduct a legal “beauty contest” and appoint one or more of the children, or even appoint a local professional guardian, attorney or CPA to so serve, as the circumstances warrant and as may appear just and proper to the Court. Once the Guardian is appointed, the Guardian will be able to access Rhonda’s account, but likely would not be able to go beyond that (e.g., sell home, etc.), unless specifically authorized to do so without Court approval under the then current Florida Guardianship Act. As you can see, Guardianship is uncertain, not super cost-effective, and a formalized legal proceeding governed by intricate and specific statutory guidelines. I personally don’t like to handle guardianships any more, even though our firm financially makes more money on a normal guardianship case than we would on a normal RLT case.
There are countless variations on the above examples, and I might further expand on this theme in the future. Certainly none of the above scenarios is surprising for an estate planning/elder law attorney to encounter on a given day. I’m personally a big believer in preplanning with adequate legal documents in place, and also with institution specific procedures followed as directed by your financial institution of choice, to best suit your own desired plan. That approach tends to be more cost effective, less stressful, and yield better, more predictable, results.
One of the rewarding aspects of my profession is that I daily see creative and innovative use of available Florida laws, statutory, case law, and regulatory, along with real world community service and public assistance services, employed to the benefit of senior adults in need. If you have a particular real life story near and dear to your own family, I would invite you to share that with me via e-mail. It’s a big, bad world out there, and senior adults in need have to pull their collective resources together to try to make it through. I’m looking forward to hearing from you if you have something to share with me.
Don’t be a victim of one size fits all planning. Know your legal rights on estate and elder law planning, and act accordingly!
For more information, please consult our website: www.floridaelder.com.
Grady H. Williams, Jr., LL.M.
Attorneys at Law, P.A.
1543 Kingsley Ave., Ste. 5
Orange Park, FL 32073
Phone: (904) 264-8800
Fax: (904) 264-0155
Email: grady@floridaelder.com
Assuming you are mentally and physically “vertical” when you come in for your estate and elder law plan with our office, you will be able to create your own plan for disability or chronic illness. Legally, you call your own shots as long as you are able to. But what about when you cannot do so any longer? What is the best way to address that possible risk?
Florida has an updated, very broad, and very flexible Durable Power of Attorney (DPOA) act, as set forth in Florida Statutes Chapter 709, Part II (ss. 709.2101 – 709.2402). Here’s a quick link for your further review: http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0709/0709PartIIContentsIndex.html&StatuteYear=2011&Title=-%3E2011-%3EChapter%20709-%3EPart%20II
Of particular note, if signed on or following October 1, 2011, your Florida DPOA is effective upon signing, and as long as expressly and specifically authorized in your Florida DPOA, and separately signed or initialed by you as to such express itemized power, you may authorize your Agent to act on your behalf to create, modify, fund, or terminate a trust; created and fund a trust for Medicaid planning purposes (i.e., a Qualified Income Trust or “Miller” Trust), change your transfer on death beneficiary account designations, make gifts or transfers on your behalf, and/or change your qualified retirement account (e.g., 401k or IRA) distribution schedule.
All of those express powers should be carefully considered and reviewed, since you are obviously putting a lot of authority in the hands of an immediately authorized agent to act on your behalf. I assure you that on a difficult estate or elder law case, we might need every one of those express powers to be exercised by your Agent on your behalf, for proper pre-mortem estate planning or elder law planning purposes.
Guardianship is covered by Chapter 744 of the Florida Statutes. Here’s a link to that chapter for your further review: http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0744/0744ContentsIndex.html&StatuteYear=2011&Title=-%3E2011-%3EChapter%20744
While Part III of that Chapter does provide for different variations on the theme, the norm that we see and fear in practice is the need for a plenary (i.e., “full authority”) guardianship, following a determination of total incapacity. Focusing on assets, contract rights, legal entitlements, etc., we are said to have a “Guardian of the Property.”
On the other hand, the “Guardian of the Person” is responsible for health care, mental health, and related personal placement and personal social environment decisions. Arguably a Guardian of the Person is unnecessary if current, detailed advance health care directives are in place as provided for under Florida Statutes Chapter 765, which will be the subject of a separate blog. Since everything seems to cost money in our society, the Guardian of the Property must out of necessity work with the Guardian of the Person.
Trusts are now covered by Chapter 738 of the Florida Statutes, and there are of course other statutory provisions which often come into play in trust planning in Florida. Here’s a link to Chapter 736 for you: http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0736/0736ContentsIndex.html&StatuteYear=2011&Title=-%3E2011-%3EChapter%20736
As I’ve discussed previously, a trust is a private agreement and arrangement covering your property, whereby you designate a fiduciary to legally own title to, manage, invest, protect, and distribution your property, for the benefit of yourself or others. Trusts are effective immediately unless otherwise specified, and hence can be used to supplant or supplement the use of a DPOA or Guardianship of the Property.
The question then becomes: “How do the DPOA, Guardianship of the Property, and Trust laws work together in a particular planning case?”
Answering that question is going to require some discussion, so I’m going to stop here for this time, and continue next time to show you in detail how the DPOA, Guardianship of the Property, and Trust instruments and laws interact with one another.
Don’t be a victim of one size fits all planning. Know your legal rights on estate and elder law planning, and act accordingly!
For more information, please consult our website: www.floridaelder.com.
Grady H. Williams, Jr., LL.M.
Attorneys at Law, P.A.
1543 Kingsley Ave., Ste. 5
Orange Park, FL 32073
Phone: (904) 264-8800
Fax: (904) 264-0155
Email: grady@floridaelder.com
You’re A What?
I’m an estate planning and elder law attorney.
What does that mean, and how did I get here? How can I help you now that I have arrived at this point in my law practice?
Country Humorist Jerry Clower told a story based on the adage or rhetorical question, “Where will you be when you get where you’re going?”
A I little more polished, Former Secretary of State Henry Kissinger was often quoted saying “If you do not know where you are headed, then any road will take you there.”
Where am I now in my law practice? What road did I take to get here?
My own personal odyssey began after an undergraduate accounting degree from FSU and law school at UGA with my doing fairly sophisticated commercial real estate and real estate finance law in Dallas, Texas, for the better part of my first 10 years of practice. I saw the boom and the bust times during those formative years; the upside, and the downside, so to speak. I also developed experience representing for-profit business entities, not-for-profit organizations, and charities. And I first began to deal with trust and estates there.
When I returned to Northeast Florida, I retooled with an LL.M. in Taxation from the UF Law Graduate Tax Program, and then opened my own practice. I actually grew up in Orange Park, and although Jacksonville proper offers a bigger market, I really enjoy living and practicing law in a suburban location that I know and love. Hence, I still practice in Orange Park today, 20 years after hanging out my shingle in Florida.
I knew that I would do my fair share of transactional, business, corporate, and real estate law in Orange Park. I also expected that I would practice in the traditional area of estate planning. That deals with the legal solutions and procedures planned for and followed in the event of a client’s disability, incapacity, and death. So in summary, my expectation was that I would basically continue what in the old days would have been called a “Real Property, Probate, and Trust” practice, which also by necessity would include business and corporate law as a component.
Something strange happened along the way: I became aware of the increasing number of senior adults in Northeast Florida who needed institutional level custodial care due to chronic illnesses, such as dementia, stokes, and general aging related physical and medical conditions. Public assistance planning was vital, as institutional care was cost prohibitive for most of my clients otherwise.
Soon, my “old school” estate planning practice had become also an elder law planning practice, in which I was challenged to zealously seek holistic solutions for my clients’ various problems arising from aging, chronic illness, special needs, disability, and yes, still death, with follow up post-mortem action needed. Interestingly enough, all of my prior legal experience and education worked very well with the increasing and varied demands of my senior adult and special needs clients.
Now, whether we label it “retirement age planning,” “long term care” planning, Medicaid pre-planning, elder law, estate planning, or just plain old lawyering, I’ve found that where I am is where I started, acting as both an attorney (technically correct and professional lawyer) and counselor (wise and practical advisor) to my clients, each of whom are unique and varied, and each of whom have real legal and practical needs requiring careful planning and professionally crafted solutions.
I’m pleased and blessed to have this opportunity, and continue to make myself and my team available to try to craft solutions as necessary to help properly address your and your family’s own needs in an honest, professional manner.
Don’t be a victim of one size fits all planning. Know your legal rights on estate planning and elder law planning, and act accordingly!
For more information, please consult our website: www.floridaelder.com.
Grady H. Williams, Jr., LL.M.
Attorneys at Law, P.A.
1543 Kingsley Ave., Ste. 5
Orange Park, FL 32073
Phone: (904) 264-8800
Fax: (904) 264-0155
Email: grady@floridaelder.com
Do I Really Need a Health Care/Living Will Surrogate?
Florida law provides for the designation of a health care surrogate under its two statutory advance health care directives, the Living Will and the Designation of Health Care Surrogate.
For More on Florida’s Living Will:
For More on Florida’s Health Care Surrogate:
You might want to read more about these advance directives in Florida Statutes Chapter 765.
In theory, you could have a Living Will which did not designate a surrogate to act on your behalf. Presumably, no such surrogate designee would be needed, as your written Living Will instructions would be so clear and unambiguous that reasonable health care provider minds could not possibly confuse, delay or obstruct your instructions for your end-time comfort and medical care. By statute that’s the rule, but in practice sometimes things aren’t so clear.
Health care providers have multiple levels of administrative and medical hierarchy. Wouldn’t it be reasonable to expect that just as you might need an advocate to articulate and clarify your legal position in a court of law, you might also need an advocate, even if it is a layperson and family member, to advocate for you and your expressed wishes to your health care providers? This is especially true when the decision is dealing with your end-time instructions and requests.
One argument against Living Will surrogates is that they might undo your wishes in the worst case, or have a guilt trip for following your expressed end-time wishes in the best case. Feelings, regret, and grief are all legitimate, valid emotional responses to a very difficult circumstance: the death or last stages of the last illness of a loved one.
Others argue against the use of Living Wills at all, and point to anecdotal evidence of premature prognosis of eminent death of those patients who, miraculously, later rallied and survived their presumed “final illness” and “deathbed.” I don’t know any perfect lawyers, so I’m going to assume there are no perfect doctors and hospitals, either.
I side on the use of a Living Will, Designation of Health Care Surrogate, and HIPAA (i.e., General Medical) Release, naming your select, trustworthy, and strong minded health care decision making designees, for many reasons.
First, by so doing, you have inexpensively appointed a recognized representative for you to help navigate the complicated and often frustrating health care services environment, at a time when you well may not be able to do so yourself. In most instances, no further time consuming and expensive legal incapacity and guardianship proceedings then will be necessary.
Second, you help your health care professionals help you by giving them a clearly designated agent to speak directly to about your various health care related advance directives, and your wishes and instructions.
Third, you clearly have established the legal standing of your designated surrogate to seek court action, if necessary, to enforce or defend your expressed written wishes or instructions.
Fourth, designating the surrogate in writing and in advance gives you a golden opportunity to clearly discuss your wishes, preferences, and instructions with your designee prior to the time of crisis.
Fifth, and finally for now, your appointed surrogate can be authorized to sign and/or request a statutory “DNR” order from your physician, which will be respected by EMR personnel and your health care providers if appropriate to your case.
For more on Florida’s “DNR” (Do Not Resuscitate Order):
http://www.doh.state.fl.us/demo/trauma/dnro.html#Whatis
Grady’s Bottom Line: While not universally accepted, use of a designated surrogate for your statutory health care advance directives will help ensure that your wishes and instructions are carried out as desired and intended by you. Why leave something that important to chance?
Don’t be a victim of one size fits all planning. Know your legal rights on estate planning and act accordingly!
For more information, please consult our website: www.floridaelder.com.
Grady H. Williams, Jr., LL.M.
Attorneys at Law, P.A.
1543 Kingsley Ave., Ste. 5
Orange Park, FL 32073
Phone: (904) 264-8800
Fax: (904) 264-0155
Email: grady@floridaelder.com
What’s Durable Power of Attorney?
Durable Power of Attorney (DPOA) is a legal document, authorized by specific statute, recognized to be binding and controlling of your legal rights. Historically, a power of attorney was created at common law in writing by one person, naming another as his or her “agent” or “attorney-in-fact” (NOT Attorney at Law). However, the incapacity of the person making the power of attorney revoked the authority of the agent to act under the power of attorney, under the theory that if the person making the power of attorney lacked capacity to act, then the agent for that person did not independently have sufficient legal capacity to act for them.
That’s a little bit cumbersome, as a third party relying on a power of attorney might not even see the person who created the power of attorney, who is called the principal. Defenses to contracts and legal actions, such as signing a deed to property, sprang up. The third party might very well say, “Who knew that the principal was in fact lacking capacity at the time the agent attempted to legally act on the principal’s behalf?”
Modern statutes create the survivorship of the agency under a “durable” power of attorney, which survives the incapacity of the principal. This makes the modern DPOA statute much more flexible, and in fact an inexpensive alternative to guardianship of the property, which is court supervised and more expensive and comprehensive in its procedural and legal requirements. Florida updated its Durable Power of Attorney statutory scheme effective October 1, 2011, with revisions to Chapter 709, Part II, Florida Statutes. http://www.leg.state.fl.us/STATUTES/index.cfm?App_mode=Display_Statute&URL=0700-0799/0709/0709PartIIContentsIndex.html&StatuteYear=2011&Title=-%3E2011-%3EChapter%20709-%3EPart%20II
Under these new changes, certain authorizations, such as creation of a trust, modification or revocation of a trust, making of a gift, changing rights of survivorship, changing a beneficiary designation, waiving a right to be a beneficiary of an annuity or retirement plan, or disclaiming property, must be specifically evidenced by a separate signed provision. These powers should be carefully considered and discussed in application for each individual DPOA, and if chosen, should be evidenced by confirming signature or original initials of the principal, clearly shown on the face of the signed DPOA.
The new Florida DPOA scheme also does away with any express “springing” DPOAs being created. In other words, new Florida DPOAs are live and effective immediately, and are not contingent on your incapacity (i.e., the reverse of the common-law power of attorney, which had been permitted under prior statute). However, if you are wary of granting a DPOA effective immediately, consider if safety warrants either the appointment of a co-agent, so that the two (2) co-agents together will presumably keep one another honest, or “escrowing” your DPOA with your Attorney at Law, to be used and released conditioned on your own future request, or your physician’s written opinion to your Attorney at Law that you are unable to handle your own affairs at that time.
Don’t be a victim of one size fits all planning. Know your legal rights on estate planning and act accordingly!
For more information, please consult our website: www.floridaelder.com.
Grady H. Williams, Jr., LL.M. Attorneys at Law
P.A. 1543 Kingsley Ave.
Ste. 5 Orange Park, FL 32073
Phone: (904) 264-8800
Fax: (904) 264-0155
Email: grady@floridaelder.com
What’s best for me, a Will or a Trust?
Whether you plan your estate for primarily relying on a Will or Trust depends on your and your family’s own unique, special circumstances.
Historically, a “Last Will and Testament” was the cornerstone of an estate plan, which was legally operative only upon death, and required probate by a court of the decedent’s estate.
Trusts gained in popularity in the U.S. in the 19th Century among the super-rich, and then a popular movement for the use of trusts by the middle class and wealthy started in the 1960’s.
If a trust is used, it can be made effective immediately, or deferred until death, but may be structured in either case to avoid court supervised probate.
Usually a trust is backed up by a coordinated will signed at the same time as the trust.
Your assets, family structure, needs, goals, budget, desire for privacy, potential for family conflict, estate tax exposure, and need for asset protection will all need to be weighed to determine what’s best for you.
Don’t be a victim of one size fits all planning. Know your legal rights on estate planning and act accordingly!
For more information, please consult our website: www.floridaelder.com.
Grady H. Williams, Jr., LL.M.
Attorneys at Law, P.A.
1543 Kingsley Ave., Ste. 5
Orange Park, FL 32073
Phone: (904) 264-8800
Fax: (904) 264-0155
What is a Revocable Living Trust?
A revocable living trust (“RLT”), sometimes referred to as a revocable trust, living trust, or even a “loving” trust, is a legally recognized private agreement which allows one or more adults to manage, own and transfer property for their own benefit, and ultimately for the benefit of others.
An RLT is often created by a single person or surviving spouse as to their own property, or by a married couple as to their separate and joint assets. However, an RLT can also be used as a private contractual and property arrangement between same sex couples, unwed couples, and even siblings or business partners.
The norm for an RLT is for the person who creates the trust, known as the trustor, grantor or settlor, to also serve in the fiduciary capacity of trustee, who manages and legally owns the trust property. Initially, the person who creates the trust is also the current beneficiary of the trust, and can utilize the trust assets and income as needed. However, the RLT will spell out further directions and restrictions on trust assets and income upon the incapacity or death of the trustor.
Historically, RLTs were the best way to organize and plan ahead for “marital deduction planning,” designed to minimize or avoid the federal and some states’ estate tax on a decedent’s property. In 2012, with the individual effective federal estate tax exemption amount at $5,000,000, and with many states having repealed their own estate tax, this is theoretically of lesser concern. However, most of us are going to live to 2013 and beyond, and due to uncertainty of estate tax planning laws which will then be in effect (i.e., repeal of the so-called “Bush Tax Cuts”), marital deduction planning and variations thereon have not completely gone out of use.
More modern RLTs are also designed to provide asset protection planning to the ultimate beneficiaries of the trust, who are often family members or close family friends. Planning ahead for your family with “dynasty” provisions and other techniques can make your RLT useful to multiple generations, while still providing flexibility to your future beneficiaries.
Legal and estate planning counseling, versus word processing and document assembly, are the keys to establishing a successful RLT. Know your legal rights about the use and availability of trusts to meet your and your family’s needs and goals.
For more information, please consult our website: www.floridaelder.com.
Grady H. Williams, Jr., LL.M.
Attorneys at Law, P.A.
1543 Kingsley Ave., Ste. 5
Orange Park, FL 32073
Phone: (904) 264-8800
Fax: (904) 264-0155
Email: grady@floridaelder.com
What is a Trust?
Trusts of various types are used today for guardianship avoidance, probate avoidance, tax planning, asset protection planning, estate and gift planning, special needs planning for disabled family members, elder plan and Medicaid planning for nursing home assistance, and for charitable giving.
A trust is a legally recognized private agreement which allows an adult to manage, own and transfer property for their own benefit, or for the benefit of others.
Common to all trusts are (i) the person who creates the trust, often called the trustor or settlor, (ii) person who serves in the fiduciary capacity of trustee, who manages, of record legally owns, and who may ultimately distribute the trust property, and (iii) the beneficiary or beneficiaries who are designed to be better off by virtue of the creation of the trust with the trust property held by the trustee.
A trust without any property is called a “dry trust” and can be legally declared invalid. This is rare. Most trusts are created with at least nominal trust property. For example, $10.00 contributed to a trust would be sufficient trust property for a valid trust. A revocable living trust, common in estate planning, often contains investment assets, cash accounts, interests in closing held businesses, and certain real property.
Trusts are not new, but they are pretty much restricted to English and American property and contract law concepts. Trusts were once referred to as “uses,” suggesting that the trust property was going to be put to a particular use by the trustee for the benefit of the beneficiaries, as legally directed in writing by the trustor or settlor who created the trust. Trusts began in England as a means of minimizing taxes due to the crown upon the transfer of title to real property, and as a safeguard against “forfeiture of the blood” if your royal politics weren’t right and you were convicted of treason. Prosecutors, appointed by the King, not surprisingly expected a 100% conviction rate in treason cases.
The answers for you aren’t all in a mail order box kit or on an internet program. Know your legal rights about the use and availability of trusts to meet you and your family’s needs and goals.
For more information, please consult our website: www.floridaelder.com.
Grady H. Williams, Jr., LL.M.
Attorneys at Law, P.A.
1543 Kingsley Ave., Ste. 5
Orange Park, FL 32073
Phone: (904) 264-8800
Fax: (904) 264-0155
Email: grady@floridaelder.com
What’s Probate?
Probate is court supervised control of a decedent’s estate to determine what the decedent’s estate consists of, whether the decedent’s will and any other instructions are legally enforceable, and who is entitled to the estate.
Upon death, a decedent’s separately titled property needs to be retitled to others to be accessed and utilized. Absent a transfer on death beneficiary designation, such separate property is subject to jurisdiction of the applicable court under the probate laws of the decedent’s state or based on the location of the decedent’s real property.
Florida law uses probate both in the case of a decedent leaving a Will, which is called testate succession, and in the case of a decedent not leaving a Will, which is called intestate succession.
The two most common probate procedures in Florida are Summary Administration for older or smaller estates and Formal Administration for newer and larger estates. Florida law also has a number of “hidden” rules, which are not necessarily consistent with common law of every state, but which apply to specific family relationships if the decedent was married or had minor children.
These special rules are potential “GOTCHAS” for do-it-yourselfers who do not have a working knowledge of Florida constitutional and statutory laws relevant to estate planning. Special family rights, taxes, creditors, validity of Wills and other instructions, and final distribution of assets are all the subject of a probate proceeding.
Because of privacy, cost and delay considerations, many clients choose to intentionally plan to avoid or minimize the prospects for probate after their deaths.
Your assets, family structure, needs, goals, budget, desire for privacy, potential for family conflict, income tax exposure, estate tax exposure, and need for asset protection will all need to be weighed to determine what the best estate plan design is for you, and whether a probate should be the primary post-mortem administration procedure for your estate.
Don’t be a victim of one size fits all planning. Know your legal rights on estate planning and act accordingly!
For more information, please consult our website: www.floridaelder.com.
Grady H. Williams, Jr., LL.M.
Attorneys at Law, P.A.
1543 Kingsley Ave., Ste. 5
Orange Park, FL 32073
Phone: (904) 264-8800
Fax: (904) 264-0155
Email: grady@floridaelder.com
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