Tampa Estate Planning Lawyer
Nobody likes to think about what happens after a tragic loss, but making sure that your loved ones are taken care of after your passing is one of the most important things you can do. Establishing a plan on how you want your assets and wishes to be handled not only gives you peace of mind that your family will be taken care of, but also makes things much easier on them as they go through this very tough time. Let the friendly and experienced team at the Law Office of Gian-Franco Melendez help you to navigate the complex process of estate planning.
Having an estate planning lawyer assist you can help you make strategic decisions regarding your personal assets and your business assets. These strategies can be planned ahead and implemented when needed to ensure a smooth transfer while minimizing estate taxes and business transfer taxes.
At the Law Office of Gian-Franco Melendez we can assist you with the following estate planning tasks:
- Creating a Will
- Establishing a Power of Attorney
- Creating an Irrevocable Trust
- Creating a Testamentary Trust
- Creating a Living Trust
- Creating a Living Will
- Establishing an Advanced Healthcare Directive
Each of these areas are outlined in detail below.
What is a Will and why do I need one?
A will is an estate planning document that outlines the below conditions. They are necessary so that your intents and wishes are carried out the way you want them to be.
A will clearly lays out:
- What you want done with your assets after you pass.
- Who you choose to carry out (or execute) your wishes. This person is known as the executor of your estate.
- Who will be the guardian of your minor children
When a person passes away, their estate is settled through the probate process. The probate process is how any outstanding debts you may have are paid off and then any additional assets are distributed. Once the court reviews your will, your remaining estate is distributed based on the terms and conditions that you and your estate planning attorney laid out in your will.
If you don’t have a will, your estate will be distributed based on Florida law. Obviously, this is not something you want left up to chance; thus the reason for drafting a valid will in the first place.
How a Will Affects Business Owners
If you own a business at the time of your passing, your will will also layout who you want to take over your business. If you do not have a will, your company will be passed to a family member based on Florida law. Of course, you will want a say in who that family member is since not everyone is in a position to run a business that was passed on them or may not have the skills to do so.
If you do not have a valid will, the court will also appoint an executor of your estate. This gives the court appointed executor the ability to decide what happens with your company, its assets, and its debts. If you work with an attorney to draft a thorough and proper will, you control who that executor is, obviously someone you know and trust.
Having a will is important, but there are drawbacks, namely, any property passed on through a will must go through the Florida probate process, taxes will need to be paid, and your assets will be distributed all at once.
What is a Power of Attorney?
A power of attorney is a legal document that grants someone you trust with the authority to make decisions on your behalf. Power of attorneys are created in case something happens to you that would prevent you from making a decision or handling certain matters—like a coma, mental illness, or being in another state—and must be created when you are still mentally competent. This is a good way to ensure your affairs are in order before something like this happens.
A power of attorney arrangement is important to ensure that your financial affairs are managed properly in the event you unexpectedly become unable to do so yourself. This task is intended to minimize complications, and through the use of an attorney who specializes in these types of arrangements, they can be much more stress free.
Florida require that your power of attorney be in writing, witnessed by an authorized party, and notarized by a Florida notary public. Using a licensed Florida estate planning attorney ensures that you understand Florida power of attorney laws so the document follows legal standards.
What is an Irrevocable Trust?
An irrevocable trust is a type of trust that is frequently used for the purpose of tax planning. In general, an irrevocable trust cannot be changed or remove assets that have been transferred into it once it is established. Irrevocable trusts include
- charitable trusts,
- life insurance trusts,
- asset protection trusts,
- grantor trusts,
- qualified personal residence trusts,
- and others.
What is a Testamentary Trust?
A testamentary trust is a type of trust that is created after you die based on the wishes set out in your will. A testamentary trust is also known as a “trust in a will.”
Testamentary trusts can be used for tax planning, to manage assets for minors or special needs dependents, or to manage assets for adult beneficiaries who you fear cannot responsibly manage an inheritance.
Because a testamentary trust is part of a will, it will only go into effect once you die and your will has been probated, unlike a living trust.
This type of trust does not offer protection or specific instructions in the event that you are incapacitated. Likewise, any provision you made for others in your will cannot go into effect.
If you have a testamentary trust and you become incapacitated, your family will most likely have to go through the court probate system twice. The first time would be to establish a guardianship. Then they would have to do it again to probate your will after your death. Both of these processes can be costly, time consuming, and frustrating. Because of this, a living trust is highly recommended.
What is a Living Trust?
A living trust is a legal document created by a person who is still living in which they designate a person, the trustee, to manage their assets for the purpose of the eventual beneficiary taking over their assets.
A living trust makes it much easier to transfer this responsibility while the person is still living so that complex probate legal process can be avoided. A living trust designates a trustee to manage their legal possessions, assets, and property.
With a living trust, one can appoint themselves, as well as other people they trust, as the trustees who manage the trust.
How a Living Trust Works
Living trusts are managed by the appointed trustee who has a duty to manage the trust in the best interests of the person who set up the trust, known as the grantor. Upon the death of the grantor, the assets are put in the hands of the beneficiaries according to the grantor’s wishes which are outlined in the living trust agreement. Unlike a will, a living trust is in effect while the person is still alive and does not have to go through the courts when the settlor dies or becomes incapacitated.
What is an Advanced Healthcare Directive?
Advance care planning is the process of educating yourself about the different types of medical decisions that might need to be made, thinking about which of those decisions you would prefer if they were to arise, and then creating a document to let your family and healthcare providers know about those preferences. The document these preferences are put into are called an advanced healthcare directive (AHD). This legal document goes into effect if you become incapacitated and unable to make decisions for yourself. This incapacitation could be caused by a disease or severe injury.
Generally, an advanced healthcare directive helps others to understand what types of medical care or decisions you want carried out on your behalf if you were not able to communicate those wants when the action is needed.
What decisions need to be made in an Advanced Healthcare Directive?
The decisions regarding the use of emergency treatments to keep you alive outlined in your AHD may cover procedures or interventions like:
- Use of CPR
- Being put on a ventilator
- Use of a feeding tube
- Use of artificial hydration (i.e. intravenous fluids)
- or, Comfort care (i.e. limiting medical testing, spiritual counseling, pain medication, etc.)
Again, if you are in a situation in which these hard decisions are having to be made, then it is a very stressful time for your loved ones. Help ease some of their burden by creating an Advanced Healthcare Directive.
What is a Living Will?
A living will is a document that outlines your wishes when it comes to whether or not you want to be kept on life support if you become terminally ill or fall into a persistent vegetative state. It also addresses details like:
- your preferences for tube feeding,
- artificial hydration,
- and the administration of pain medication.
A living will only goes into effect when you cannot communicate your wishes on your own.
A living will is usually limited to medical treatment in the event of:
- a terminal illness,
- an injury,
- or a state of permanent unconsciousness.
If you do not have a living will that outlines your desires, medical professionals will make these decisions for you, which may be against your desires. Simply put, doctors or hospitals may be legally obligated to perform certain procedures that you would not want because you do not have a legal document that outlines these wishes.
A surviving spouse, adult child, or another relative can make these decisions for you, but it is helpful if you have made your wishes clear in a living will.
If you are in a position where a living trust is needed, your family is already facing emotional turmoil. In light of this, why not help them to avoid making these extremely difficult decisions during this stressful time by making your wishes known ahead of time in an official legal document?
Just in case you hear other terms, it may be helpful to know that a living will is sometimes also called a declaration regarding life-prolonging procedures, an advance directive, or simply a declaration.