by Estate Planning Attorney Nydia Menendez
We all have an Estate. Estate Planning is the process of designing a plan in advance so that no matter what happens, you are always in control of that Estate. Your Estate includes your person and your assets – your stuff. Should you pass away, what remains are your assets. These comprise your Estate.
A proper Estate Plan must also plan for the possibility of incapacity. Statistically, 70% of persons over the age of 65 will experience some form of incapacity during their lifetimes. Be sure to take this into consideration as you develop your Plan.
When the topic of Estate Planning comes up, most people think of a Will. But there are many shortcomings to having a Will alone. First, Wills do not address incapacity – they only focus on the distribution of assets at death. And for that distribution, judicial Probate administration by the court system is required, which is both time-consuming and expensive. If Guardianship is necessary, the court will get involved in that as well if the only document a person has is a Will. An Estate Plan, therefore, with a Will and nothing more will not avoid the very undesirable judicial processes of Guardianship or Probate. What’s more, the distribution of assets at death could have unintended negative consequences for the beneficiaries.
That is why, in addition to a Will, we recommend that every Estate Plan include a Trust, Advanced Health Care Directives, and a Durable Power of Attorney.
A Trust is like a company you can set up to hold your assets. While you are alive and have capacity, you are the Trustee of your Trust. When you create the Trust, you appoint a Successor Trustee to manage the assets in the Trust in the event of your incapacity or death. Because your assets will then have a way to be managed, there is no need for Guardianship or Probate.
Having your assets in a Trust will address the management of those assets during your lifetime, as well as the distribution of those assets should you pass away or become incapacitated. And if your beneficiaries have different needs and circumstances, you can tailor the distributions to them in ways you consider most appropriate. You can shelter distributions so that the inheritance you leave for your loved ones will not be lost to divorce, claims of creditors and lawsuits, or remarriage of a surviving spouse.
Because you want to be in control no matter what happens, a good Estate Plan must also include Advanced Health Care Directives to address medical decisions, including life and death decisions.
Lastly, once your Plan has been designed, it is important to follow the strict execution requirements and signing protocols. You will need to sign your documents in the presence of two witnesses and a Notary, all of whom must be in each other’s presence at the time. Additionally, make sure that the people who will be charged with responsibilities as listed in your Trust, have access to your documents when needed in a way that is both fast and secure.
How to Get Started?
If you want to learn more about how to plan for your future to make sure you leave a loving legacy for your family, we invite you to call our office at (954) 963-7220 to speak with a member of the Menéndez Law Firm. You may also want to watch the video series on our YouTube channel where we talk about Estate Planning in detail. Or if you want to join us for the next live Wills, Trusts and Estate Planning webinar on Zoom you can register at no charge on our website www.menendezlawfirm.com
Estate Planning Attorney
Menéndez Law Firm
2699 Stirling Road, Suite B200
Fort Lauderdale, FL 33312
Tel.: (954) 963-7220
Fax: (954) 963-7232