Estate Planning for Survivors

What Is Estate Planning?

Estate planning addresses your major concerns for the future by putting legal documents in place to protect yourself, your family and your assets in the event you become incapacitated due to injury or illness or you die.

Estate planning is the process of planning in advance how your estate is to be managed in the event you are unable to do so yourself, as well as, how it is to be disposed of when you die. Having no estate planning documents in place means that your estate––the assets and financial wealth you have worked hard to accumulate––will be distributed by a probate court in accordance with the state’s intestacy law and you will have lost the ability to say which of your heirs should inherit what part of your estate.

What’s more, if you were to become incapacitated due to illness or injury, without the proper estate planning documents in place, your family will have to go to great lengths to gain the authority to manage your financial affairs and to make health care decisions for you during your period of incapacity.

Estate planning is an ongoing process that utilizes the creation of wills, trusts, powers of attorney, and beneficiary designations to achieve some or all of the following goals:

  • Drafting a last will and testament to specify how and to whom your assets will be transferred when you die
  • Specifying how your estate is to be managed if you become unable to do manage it yourself
  • Creating instructions for your care in case you become incapacitated and in need of medical care
  • Providing for the transfer of your business interest upon your retirement, disability, or death
  • Naming beneficiaries of your insurance policies, banking accounts, retirement accounts, and investment portfolios
  • Taking steps to avoid probate and to eliminate or minimize federal and state tax liability in order to preserve as much wealth as possible for future generations.

Estate planning allows you to prepare for a variety of potential circumstances, for example, a durable power of attorney will allow you to appoint someone you trust to assume control of your bank account, pay bills, and manage your finances when you can’t.

A health care power of attorney can do the same thing for medical decisions. In addition, you can draw up a living will or an advanced health care directive to record your wishes about the medical care you want or don’t want to receive.

Estate planning also uses Wills, trusts, and other instruments to transfer your property efficiently and effectively when you pass away. Good planning can reduce delays and stress, minimize taxes, and maximize the wealth your loved ones inherit.

You can use a Will to determine who gets your property, but if you want to avoid probate, put conditions on the transfer of your assets, or if your estate is large enough to be subject to estate taxes, the use of one or more trusts may be a better option.

Finally, estate planning allows you to protect vulnerable loved ones, for example, by naming a guardian to care for your minor children and by providing long-term wealth management for loved ones with special needs.

Your Assets Should First Be Listed in Detail

Every good estate plan starts with a thorough listing of all of your assets including:

  • Real estate;
  • Bank accounts;
  • Stocks, bonds, and other securities;
  • Personal property, like cars, jewelry, etc.
  • Life insurance policies, retirement accounts, and annuities.

In addition, you should make a list of all of your obligations and liabilities, along with details regarding:

  • The type of liability/obligation
  • The amount
  • The name, location, and contact of the individual or entity to whom the obligation is owed.

These listed should be reviewed and updated regularly or whenever an asset is acquired or relinquished or liability is assumed or satisfied.

Distributions to a Surviving Spouse

Married couples need to decide amongst themselves how they want to plan for the transfer of assets from one spouse to the other when the first one passes away. One of the ways to address this issue is by using a Bypass trust within an A-B trust strategy.

A Bypass trust, also referred to as a Credit shelter trust or Family trust, can allow the first spouse to die to ensure that any property held in the Bypass trust (the B trust) will be distributed to his or her beneficiaries (usually his or her children) after the surviving spouse’s death. The remaining estate assets that were not used to fund the Bypass trust may then be transferred to the surviving spouse outright or through another trust (the A trust).

Ultimately, the surviving spouse gets the income he or she needs from the B trust to maintain his or her standard of living and to raise the children. However, when the surviving spouse dies, only the A trust is included in his or her estate to be distributed as he or she sees fit.

This type of trust strategy is especially useful if you are a married couple with children from previous marriages because it allows you to segregate out, preserve, and protect your share of the estate so that it can ultimately be transferred to your children (as opposed to your surviving spouse’s children) after your surviving spouse dies.

Distributions to Family Members

There are essentially three ways to transfer property to your surviving family members either at your death (if you are single) or at the death of the second spouse (if you are married):

  • Outright: You can transfer assets to your family members outright through your will or by using beneficiary designations. While this is the least complicated way of transferring assets to family members, it is not always the most effective.
  • With a short-term trust strategy: This is helpful if you have children who are not old enough to manage their own assets. You can have a trustee manage the assets for them until they old enough to manage the assets themselves. Then you can have the assets transferred to them in either one lump sum or a number of installments. This will also allow you to have some control over access to the assets and to protect them from being squandered away by the beneficiary.
  • With a long-term trust strategy: A long-term trust strategy is the same concept as a short term trust strategy, but instead of the assets being distributed to the beneficiaries when they reach a certain age, the assets will remain in trust for the rest of their lives. If you want, you can also allow the beneficiary to become their own trustee once they reach a certain age. This way the beneficiary is in control of their own assets, but these assets will still be out of the reach of creditors and other unwanted outsiders.

Widow/Widower Estate Planning

Death is a major life event and the passing of a spouse should trigger a review of all your estate planning documents. Most estate planning documents, when drafted for a married couple, are set up so that a spouse is normally the primary agent and there is an alternate agent named in the event the spouse cannot act.

For example, a power of attorney will usually name your spouse as your primary agent for when you become unable to act on your own behalf, but also name an alternate, such as an adult child, close friend, or someone else you trust, who will act on your behalf should your spouse be unable to act for you. When this is the case, the estate planning document does not necessarily have to be updated after the death of your spouse.

On the other hand, any estate planning document that names your deceased spouse as your agent, but does not name an alternate agent, should be updated with the help of a qualified estate planning attorney. Even if the document does name an alternate, you still need to ask yourself if that individual is really the person you want to act on your behalf?

This is because, now that your spouse has passed away, should you be unable to act for yourself, this person will have all of the responsibility of managing your affairs. If this is not the person who you really want to entrust with this responsibility, you should meet with your attorney and update that document as soon as possible after the death of your spouse.

What Is A Revocable Living Trust and Why Are They Recommended?

A revocable living trust, or as it is simply called, a living trust is a legal document that you (the trust settlor) set up to hold and own assets, which may then be invested and spent for your benefit or for the benefit of others whom you name as beneficiaries of the trust.

So, why is this important?

This is important because any assets that you own in your sole name at the time of your death will most likely have to go through probate before being transferred to your heirs. Probate can be a costly and time-consuming process.

A living trust is a way to transfer ownership of assets from your name, where they would otherwise be subject to probate, to the name of a trust where they would not. So, the main and most direct advantage to using a living trust is that, if you use it correctly, your assets can be transferred to your heirs without having to go through probate.

Another reason why a living trust it recommended for most estate plans is that they allow you to do the following three things:

  • Manage the trust assets, as the trustee while you are alive and well;
  • Name a successor trustee who will manage the trust assets in the event you become mentally incapacitated and to specify how they are to be managed; and
  • Specify how your assets and property are to be disposed of after you die.

Conclusion

Estate planning for your survivors can get very complicated, but an experienced Florida probate attorney can assist you in identifying your assets, transferring them to your loved ones when you die, and minimizing taxes. In addition, a good Florida probate attorney will guide you through the estate planning process and help you determine which estate planning tools will work best for you and your estate planning goals.