What Documents Are In An Estate Plan? By: Christine Schafer, Esq.
Updated: Mar 24
Estate planning is the process of planning ahead for how your assets will be managed in the event of your own incapacity or death. When it comes to estate planning, no one plan fits all – each person has their own unique goals in mind and their plan should be tailored to their specific objectives. Here are the top six estate planning documents everyone must consider:
Revocable Living Trust. The Revocable Living Trust is a very popular planning tool since it offers quite a bit more than just a standalone Last Will and Testament. Some benefits of creating a living trust include: Probate Avoidance: Any asset held in trust will not be subject to the probate process. The asset will instead pass directly to the beneficiaries in accordance with the trust terms.Incapacity Planning: You will nominate a trustee (or co-trustees) to step in and manage your assets during a time of mental or physical incapacity. This individual will also be in charge of distributing your trust assets (in accordance with the trust terms) upon your passing.Control: Put controls in place to protect young beneficiaries from overspending or an irresponsible beneficiary from blowing through their inheritance.Creditor Protection: The assets you leave to your beneficiary can be protected against most creditors, such as a potential ex-spouse/divorce, litigation and more.Pet Trust: Plan ahead for the care of your pets by creating a trust for them. You can select who will care for them, the type of veterinary care they receive and more.
Last Will & Testament. The last will and testament can be used as the main planning device, instead of the trust. If this is done, however, extra care needs to be taken to ensure your assets do not go through the probate court. If the trust is the main planning tool then you will still need to create a Will. The “job”of the Will changes – instead, if you forget to fund your trust (i.e. you leave an asset outside of the trust by failing to change title of the asset or failing to list the trust as a beneficiary) then the Will gets the asset through the probate court system and back into the trust. Some other important key features of the Will include:Guardian Provisions: If you have minor children you will want to name guardians that will raise them, should something happen to you. Request for Burial or Cremation: Your decision for how your remains are to be handled are included in your will.
Durable Power of Attorney. The individual you nominate as your agent in this document will have the authority to make important financial decisions for you. This includes handling real estate transactions for you (such as selling your home), writing checks from your accounts, assistance with qualification for Medicaid on your behalf, handling business transactions and more, should you choose. It’s important to have this person in place before you become incapacitated or, if for whatever reason, you can’t handle affairs for yourself. It’s a good idea to considering choosing someone who lives locally and also that you trust.
Designation of Healthcare Surrogate. The individual you nominate to act as your healthcare surrogate will step in to make important healthcare decisions on your behalf in the event you can’t do so yourself. Again, it’s important to have this person in place before you become incapacitated and are unable to handle affairs for yourself. If you fail to do so the court may intervene resulting in the selection of someone that you would not have chosen yourself. When deciding who should act in this important role, you may want to consider choosing someone you believe will be able to remain calm and work well under emotional stress.
Living Will. An advanced directive that is sometimes called the “pull the plug” document. This document will give your healthcare surrogate the authority to tell doctors to remove/stop life prolonging procedures (if your condition meets the requirements under Florida law). It’s important to decided ahead of time if you would want to be kept alive by life prolonging procedures (such as a breathing machine) if you are in a persistent vegetative state, end stage condition or terminally ill. Your designated healthcare surrogate will be the individual tasked with the responsibility of carrying out these wishes.
HIPAA Authorization. This authorization allows for your healthcare surrogate to communicate with medical staff about your well-being, review your records and make decisions on your behalf without delay.If you haven’t considered estate planning before then we hope that you now have a better idea about why it’s important to begin this process now. The future is unknown for us all – it’s best to be prepared to ensure your family and legacy are handled with care. Our firm is passionate about this topic and happy to answer any questions you may have. Call us at (954) 999-9683 to schedule a consultation – we are here to help.
The Legacy Law Firm is a South Florida Law Firm focused exclusively on Probate and Estate Planning. 0ffices in Delray Beach and Coral Springs.