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TYPES OF TRUSTS TO CONSIDER
Special Needs - this type of trust is created to receive an inheritance bequeathed to an individual suffering from a permanent disability. The Trustee may utilize the assets for the individuals benefit without impacting their eligibility for government benefits.
Marital (QTIP Trust) - this type of trust is predominantly utilized in the case of a second marriage. It allows a deceased spouse to care for his surviving spouse (through income and discretionary principal) and control where the remaining assets pass upon the survivors death.
Credit Shelter - this type of trust is utilized to maximize the federal exemption amount and protect the assets for future generations.
Creditor Protection - this type of trust is designed to hold a beneficiaries inheritance and protect its attachment by creditors. It will not protect against outstanding child-support or alimony payments.
Qualified Domestic Trust (QDOT) - this type of trust is created for an non-US citizen surviving spouse.
ARTICLES OF INTEREST
SARASOTA ESTATE PLANNING ATTORNEY
Wills | Revocable Trusts | Powers of Attorney | Health Care Surrogate |
Living Will | Pre-Need Guardian
I represent a diverse clientel of Sarasota (Longboat Key, Siesta Key, Casey Key, Bird Key, Venice, Osprey and Englewood) and Manatee (Bradenton, Lakewood Ranch, University Park, River Club, Palm Aire, Meadows, River Wilderness, Parish and Ellenton) County Florida residents, in different life situations, that can benefit from basic to sophisticated estate and tax plans. I design Florida estate plans (Wills, Revocable Trusts, Powers of Attorney, Health Care Surrogates and Living Wills) to minimize federal estate taxes, achieve tax efficiency, maximize wealth transfer to future generations, and ensure that the final distribution of our Sarasota and Bradenton Florida clients' assets are in accordance with their goals and objectives. For same sex couples, I draft estate plans to ensure your partners are protected from family disputes and wishes are honored as to the disposition of your estates at death.
I am frequently asked by prospective client's why I do not have set fee charges for certain legal documents (Wills, Revocable Trusts, Powers-of-Attorney, Health Care Surrogates, etc.). The answer is simple, no two clients are the same and I refuse to provide generic documents that may not accomplish their specific estate planning goals and objectives. If you desire a generic estate planning document then I am not the attorney for you.
My experience and knowledge permits me to assist clients with creative solutions to reach their goals and objectives. Your Florida estate planning documents can be drafted to protect the needs of a "special needs" individual (child and adult), and contain creditor, drug & alcohol protection provisions. These provisions insure that "special needs individuals" do not lose eligibility for government benefits, creditors can't attack a beneficiaries inheritance, and protect a beneficiary who suffers from an addiction from wasting an inheritance..
THE FLORIDA ESTATE PLANNING DOCUMENTS YOU NEED:
Last Will & Testament: A Florida Last Will & Testament ("Florida Will") is a writing, signed by a Florida resident ("Testator") and two attesting witness, which meets the formal requirements set forth by Florida law (Chapter 732 of the Florida Statutes). A Florida Will designates the individual(s) or entity that will serve as Personal Representative (executor) to administer the decedent's estate and the beneficiaries who will receive the Florida probate assets. A Florida Will can also establish a trust and designate who will serve as its trustee. A properly drafted and attested Florida Will controls over the automatic inheritance provisions set forth under Florida probate law. In the absence of a valid Florida Will, or if the Florida Will fails in any respect, Florida probate law will designate the beneficiaries and the method for selection of the Florida personal representative (Chapter 732 of the Florida Statutes).
Revocable Trust: A written declaration in which a Florida resident (the "Grantor") transfers his or her property (real estate, brokerage and bank accounts, art, etc.) into a Revocable Trust, for the benefit of his or her self, during their lifetime. During the Grantor's lifetime, the document will reserve unto them complete control over the Revocable Trust and its assets, including the right to amend or revoke the trust at any time. No income taxes are due on the transfer of assets into the trust. A "Trustee" will hold legal title to the trust property for the benefit of the Grantor, during his or her lifetime, and the ultimate recipients of the assets (the "beneficiary"). The terms and conditions under which the Trustee operates are defined in the Florida Trust instrument. Florida Trusts fall into two basic categories: testamentary (created under a Florida Will and does not come into existense until the Testator passes away) and inter-vivos (created during the Testator's lifetime, typically a "Florida Revocable Trust"). Florida Revocable Trusts are generally used for the following purposes: (i) Asset Management - Permit the trustee to administer and invest the trust property for the benefit of one or more beneficiaries; and (ii) Probate Avoidance - at the death of the Grantor, the trust property will pass to whoever is named as a beneficiary of the trust and avoid the Florida probate court process. While the assets of a Florida Revocable Trust will be included in the grantor's taxable estate, the trust can be drafted so that the assets will not be included in the estates of the beneficiaries, thus avoiding taxes when the beneficiaries die. The role of a Florida Revocable Living Trust is to (i) avoid probate when you die (especially if you own real property in multiple states), and (ii) avoid a guardianship if you become incapacitated. A Florida Revocable Trust does not provide (i) creditor protection to the grantor, or (ii) income tax savings benefits.
Power of Attorney: Written instructions which designate another individual (the "agent" or "attorney-in-fact") to make financial decisions on a Florida resident's behalf. The document is typically utilized in the event that you: (i) are rendered incapable of making your own financial decisions; (ii) are unavailable; or (iii) require assistance. The powers granted to the agent may be limited to a particular activity (real estate transaction) or be overly broad (cover everything). The agents powers may: (i) take effect immediately or upon the occurrence of a future event (springing power); and (ii) be temporary or permanent authority to act on your behalf. The purpose of a durable family power of attorney is to provide a means by which the family members can help a potentially disabled or incompetent person in handling that person's legal, business and property affairs and to avoid the time, expense and embarrassment involved in having to establish a guardianship for that person. (Chapter 709 of the Florida Statutes).
Health Care Surrogate Directive: Written instructions that set forth what actions should be taken for your health in the event you are unable to make health care decisions on your own behalf (due to illness or incapacity). The document appoints the individual ("health care surrogate") to make all necessary medical decisions in the event you are unable to express your preferences. (Chapter 765 of the Florida Statutes).
Living Will: Written instructions which allow you to determine how you want to be treated under certain medical conditions (given life-sustaining treatments in the event you are terminally ill or injured or provided food and water via intravenous devices). The document may appoint an individual to make decisions on your behalf if you are unable to do so. (Chapter 765 of the Florida Statutes) "Life-sustaining treatment" means the use of available medical machinery and techniques, such as heart-lung machines, ventilators, and other medical equipment and techniques that will sustain and possibly extend your life, but which will not by themselves cure your condition. In addition to terminal illness or injury situations, most states permit you to express your preferences as to treatment using life-sustaining equipment and/or tube feeding for medical conditions that leave you permanently unconscious and without detectable brain activity.
Pre-Need Guardian Designation: Written instructions on who should serve as your guardian of the person or property should you become unable to handle your affairs and guardianship proceedings are commenced against you. Unfortunately, a Florida Probate Court is not bound by it.
NON-US CITIZEN SPOUSE ESTATE PLANNING: Estate planning when a non-US citizen spouse is involved is a lot more complex. Lifetime gifts to a non-citizen spouse are capped at $134,000 plus $13,000 annually. It is important to utilize a Qualified Domestic Trust (QDOT) to maximize the maximum amount that can be passed estate tax free.