Brandon, Florida. January is always the time of year where we come up with New Year’s
Resolutions. This gives us a chance to prepare a list of the changes we want to see in
ourselves, or perhaps how we want to handle our relationships with others.
When it comes to estate planning, many people dislike going to see an estate planning attorney because they do not know what to expect, or because they do not want to think about their own mortality. In fact, you may wonder what is the point of planning ahead?
“Because we, as humans, do not like to think about getting older or something bad happening, people often avoid talking about estate planning until they’ve actually had to deal with it face to face, or until it is too late,” says Laurie Ohall, a Florida Board Certified Elder law attorney. As you might expect, Attorney Ohall has five reasons why adding estate planning to your New Year’s resolutions is important.
1. You may not have a huge estate, and therefore, may not think that having a Will or trust
is important. However, estate planning is more than that – it’s planning for incapacity, as
well. What if something happens and you cannot make legal or financial decisions?
Have you appointed someone to do that for you? What if this is a second marriage – will
your new spouse and your children from the prior marriage fight over who controls things
if you become incapacitated? Have you named someone to be your healthcare
surrogate to make medical decisions for you? Do you have a living will that specifies
whether you wish to be kept alive by artificial means? A durable power of attorney, living
will and health care surrogate designation are important for people of any age from the
time someone becomes an adult at the age of 18 and older.
2. If you have even a modest estate, you may find it desirable that your assets do not pass through probate at your death. A Will cannot help you to avoid probate – it tells the
Court who you want to administer your estate, and who you want to have your assets.
A Will also becomes public record. A revocable living trust, on the other hand, is private
and can help you avoid probate. Not everyone needs to have a revocable living trust
and there may be easier ways to avoid probate. Other ways to avoid probate include
having beneficiary designations on assets (such as life insurance and retirement
accounts), making bank accounts payable on death, or even owning assets jointly with
another. It is important to speak with an attorney to help you determine what is in your
best interest because not all circumstances are the same.
3. Has it been five or ten years since you last had your estate planning reviewed? Just like you go to a doctor to have your physical check-up, you should also have a review of
your estate plan (thankfully, not as often as having to go to the doctor). I usually tell
clients that it is advisable to have a review of your estate planning documents every 3 to
5 years, and whenever you have a major life change (marriage, baby, divorce, death) of
someone who is part of your estate plan. For example, Attorney Ohall had a client who
did not have any children and wanted to leave all her assets to her niece. All of her
estate planning documents listed her niece as the beneficiary, her agent under her
durable power of attorney and her healthcare surrogate. When she had a falling out with
her niece, she called Attorney Ohall to discuss removing her niece from her estate plan
completely. The client was also concerned because she was having health issues and
did not want to wait too long to make the changes.
4. If you have a minor child, planning ahead is especially important. It is not uncommon for divorced parents to have life insurance policies which list their minor children as
beneficiaries. In Florida, if a minor child inherits more than $15,000, a guardianship
must be established over the property of the child. This means court involvement,
attorney’s fees and costs, and the child receiving the money when he or she turns 18
years old. However, if the parent plans ahead, the headaches of guardianship court can
be avoided and the parent can control “from the grave” how the money is spent, even
after the child turns 18.
5. By the same token, if you have a child with a disability, planning is important for two
reasons. First, your own estate planning should be done so that, if something happens
to you, a special needs trust can be set up for your child so that someone can manage
the money to care for them and so that the child does not lose any government benefits
if they inherit money from you. Second, when your disabled child turns 18, you lose the
ability to make all decisions for them (financial, educational, health care). Therefore, you
need to either have a Durable Power of Attorney and Health Care Surrogate designation
for the adult disabled child, or you need to look into becoming their guardian advocate.
These are just a couple of the reasons why you should add “estate planning” to your New Year’s resolution list. “I cannot stress the importance of planning before it is too late, reviewing your plan every so often, and protecting your assets for you and your family,” notes Laurie Ohall. If you do not have an estate plan, why not make 2017 the year to accomplish this personal planning goal? For more information on estate planning or to talk to Brandon elder law attorney, Laurie Ohall, please call 813-438-8503 or send an email to info@Ohalllaw.com.