Herron Keller Moore: Estate Planning Attorney Experts

Estate planning is a critical piece of the puzzle in protecting your assets, planning for future health events or incapacity, and ensuring your loved ones are taken care of. Every plan is personal, and so the process of estate planning is both dynamic and tailored to an individual’s wishes.

What Is An Estate Plan

A properly drafted estate plan can avoid questions related to medical care during incapacitation, gaps in existing financial obligations, and delays in the distribution of your property. Above all, the job of a high-quality estate planning attorney is to both counsel and listen. From there, a high quality, custom document can be drafted that will provide you with peace of mind and the confidence that your loved ones will receive the full measure of what you intended for them.

Although Hollywood has dramatized estate planning as some esoteric area of the law fit only for the wealthy, the truth is that anyone of any income level can and should have the basics of some plan in place. In general, estate planning can be thought of creating a set of legally enforceable documents for two large life events: your wishes in the event you are incapacitated (temporarily or permanently) and your wishes when you pass.

Estate Plan Documents Related to Incapacitation

The individual components of an estate plan that relate to incapacitation are generally:

• Living Will
• Designation of Healthcare Surrogate
• Durable Power of Attorney
• Declaration of Preneed Guardian

A Living Will, not to be confused with a Last Will and Testament, is a written statement of your health care-related wishes in the event that you are unable communicate those wishes yourself. This document often provides specific guidance for health-related circumstances such as affirmatively stating no desire to have life artificially prolonged in the event of incapacitation, a terminal condition, an end-stage condition, or a persistent vegetative state.

Although Hollywood has dramatized estate planning as some esoteric area of the law fit only for the wealthy, the truth is that anyone of any income level can and should have the basics of some plan in place.

You may also choose to appoint someone to make all healthcare-related decisions in the event of incapacitation. This is made possible in the Designation of Healthcare Surrogate document. A healthcare surrogate has the responsibility to work directly with appropriate healthcare providers, providing informed consent, refusal of consent, or withdrawal of consent to any and all of your healthcare, including life-prolonging procedures.  Your designated health care surrogate has a duty to make healthcare-related decisions that you would have made under the circumstances.

A Durable Power of Attorney provides a trusted individual (the “agent” or “attorney in fact”) with the authority to act on your behalf. The “durable” aspect means it remains effective in the event you become subsequently incapacitated. Frequently, this document gives an individual financial and legal domain over all or a specific portions of your matters. For instance, the named “agent” or “attorney in fact” would be able to make mortgage or car payments for you in order to avoid default on these loans. Again, the agent is duty bound to make decisions that you would have made under the circumstances.

A Declaration of Preneed Guardian is a document that designates someone to serve as a guardian in the event of your incapacitation. This document, having previously been filed with the court, is used only after a legal decision is rendered on your need for guardianship. A variation of this document, a Declaration of Preneed Guardian of a Minor, is also a very important part of the estate plans of those with minor children. In this document, parents set forth who they wish to take guardianship over their children in the event of death or incapacitation. Without this document, the State will look to Florida law for guidance, which may not align with the parents’ wishes.

Estate Plan Documents Post Death

The documents generally included in an estate plan that are referred to after passing frequently include one or both of:

• Last Will and Testament
• Trust (Revocable or Irrevocable)

The Last Will and Testament is a document that controls the manner in which your (the “testator’s”) property, assets, and belongings are distributed after death. In this document, a “personal representative” or “executor,” who is also named in this document, is the person responsible for overseeing the distribution of these possessions according to the terms of the document. Last wills and testaments specifically list/name the property and the person or set of persons that property should be distributed to (the named beneficiary). In essence, these documents act as roadmaps which the personal representative is duty bound to follow.

In addition to distributing your property according to the terms of the will, personal representatives are usually responsible for overseeing the overall administration of an estate. In short, the personal representative closes out, or provides finality, to the deceased’s worldly possessions. Administering an estate consists of a number of discrete tasks, some of which are listed below:

• Identifying parties;
• Taking an inventory of and valuing the assets;
• Notifying creditors and paying debts;
• Filing taxes;
• Distributing the assets;
• Preparing a final accounting report;
• Maintaining records of the above transactions;
• Petitioning the court for release once the estate is settled.

As you can see, there are quite a few steps that need to be taken. Because most named personal representatives close few to little estates in their lifetime, guidance is frequently sought. Fortunately, Herron Keller Moore has both the experts and capability to guide you every step of the way. In fact, we have an entire department staffed with professionals that have decades of experience in probate related matters.    

… a Declaration of Preneed Guardian of a Minor, is also a very important part of the estate plans of those with minor children. In this document, parents set forth who they wish to take guardianship over their children in the event of death or incapacitation. Without this document, the State will look to Florida law for guidance, which may not align with the parents’ wishes..

Trusts in particular have become associated with “generational wealth,” most famous for serving as a vehicle for high net worth individuals to support family members years after death. Although trusts can be used for this purpose, the truth is that they are also frequently included the plans of more “modest” or “average” estates. This is because they are a very powerful planning tool with a host of benefits.

Although the concept is a bit esoteric, in short, trusts transfer ownership of your property (financial, real, or otherwise) to another for safe keeping. An easier way to understand this concept might be to think of your property in terms of toys. Assume that you currently store some of your toys in a chest in your bedroom. A trust transfers possession of that chest of toys to a close friend or relative for safe keeping (the trustee). The trustee, in turn, promises to take care of your toys and give them back to you when you ask or when you’re a bit older.

There are numerous benefits that this transfer of ownership can provide. For brevity’s sake, the following is a brief list of some our favorite benefits that trusts can bring to estate planning:

• Credit Shielding: Because ownership of the possessions has effectively been transferred out of your name, trusts can act as a shield to creditors, preserving this property. Indeed, trusts are frequently used to preserve funds from Medicaid clawback.
• Probate Avoidance: Trusts avoid probate (and thus the court system) entirely. Although having a will does indeed speed the process of distributing assets, they still require some court intervention, which does take time. Trusts can be nearly as seamless as retaining a joint account.
• Control Over Distribution: Trusts can provide better control over the distribution of assets. We frequently see this with clients who are concerned about the possibility of senseless spending. In these instances, a trust can allow for conditions to be placed on the distribution of funds.

If you are in need of legal advice related to trusts or any step in the estate planning process, the attorneys at Herron Keller Moore are here to help. We have experience drafting a wide variety of trust documents, including revocable, irrevocable, charitable, dynasty, personal residence, gun, pet, and special needs trusts.

Polk County Estate Planning Attorneys For You

Establishing a proper estate plan can protect your assets, whether the assets are in the form of property, stocks, securities, bank accounts, or other valuables, from creditors, taxes, or other losses. Each person’s asset protection needs are unique and it is vital to tailor each individual’s estate plan to their personal assets. Simple estates may be effectively protected with only a short last will and testament while many more complicated estates will have their assets protected most successfully via trusts or even by utilizing a Family Limited Partnership.

Estate planning can get complicated, and it is critical to work with an experienced estate planning attorney to guide you through the legacy planning process to ensure that your wishes are sufficiently encapsulated in a legally enforceable document. Herron Keller Moore LLC has attorneys on staff with decades of experience in drafting estate planning documents for estates of all sizes. Our lawyers have overseen countless estate administrations and understand how to both guide you and to draft personalized estate plans that will keep your interests protected and provide for your family long after you are no longer able to physically.