FAQ Estate Planning for Beginners

Estate Planning   •   Trust   •   Estate & Gift Tax   •   Other Topics

Estate Planning

What is "Estate Planning"? Estate Planning requires two simple elements First, define your goals. Second, organize your property and estate documents to meet your goals.

How does a person transfer property at death? Property owned at death is transferred either by will through probate administration, trust, or operation of law such as beneficiary designation on a life insurance policy.

May a person dispose of property in any way they wish? The answer is "yes" with two major exceptions. First, you may not disinherit your spouse without your spouse's consent, usually through a marital agreement. Second, surviving spouses and children possess special rights to your homestead and exempt property.

What is a Will? A Will is a written document which directs to whom assets shall be distributed and names the administrator of the estate. A Will alone does not avoid probate administration.

What does "Probate of an Estate" mean? Probate is the court supervised administration of your assets after your death. Your "Probate Estate" comprises all the property you owned at death which does not pass by trust or operation of law.

Why is Probate Administration necessary? Because we are not here to speak for ourselves after death the law safeguards our last wishes. Probate proceedings are conducted under strict court supervision to safeguard beneficiaries and creditors of the estate.

What Fees Costs and Taxes and Time Periods can be expected? Fees and costs can consume three to eight percent of the estate, depending on many factors. Administration of a formal probate estate will take six to nine months, and longer if complicated.

How can I avoid Probate? The only way to avoid probate and the court system is by good planning to transfer your assets outside the Probate system. The safest way to do this is by creating a trust during your lifetime. Not only will you save money, but you will remain secure throughout your life.

Contact Cape Coral, Florida estate planning lawyer Robert Adamski. Se habla español.

Trust and How to Use Them

What is a Trust? Trusts are forms of private administration of assets as opposed to a public administration of assets in a probate court. A "Trust" is a written document which you, the Grantor, create to manage property. The person who benefits from the Trust is known as the Beneficiary. The person who manages the Trust is called the Trustee. Trusts efficiently and effectively transfer assets without undue interference from the government and significantly reduce administration expense.

The Revocable Living Trust is created during your life to hold and manage your assets throughout your life and then to manage and / or distribute assets after your death. It is easy to see why the Revocable Trust has replaced the Will as the most popular estate planning tool. Advantages include:

• Avoiding probate administration and expense.
• Immediate transfer of assets at death
• Retaining control over your assets even if you become incompetent, thus avoiding the need for a court supervised guardian
• Privacy
• Protecting your beneficiaries from creditors
• Save estate taxes with Credit Shelter, By-pass, QTIP and other tax avoidance Trusts
• Providing for disable children or handling special situations
• Easily amended when situations warrant
• No additional annual tax return filing
• Avoiding family conflicts after death

Testamentary Trusts are embedded in a Will and become operational only after death. Persons who do not mind the costs of Probate and younger persons who need to plan for special situations in the event of untimely death use this estate planning tool.

Generation Skipping Trusts transfer assets directly to grandchildren and save taxes in your child's estate.

Dynasty Trusts allow you control for several generations.

Irrevocable Trusts provide additional benefits:

Irrevocable Insurance Trusts avoid tax on insurance proceeds.

Gifting during life to Irrevocable Trusts takes appreciating assets out of your estate and can save taxes for generations to come.

Contact Cape Coral, Florida Trust lawyer Robert Adamski. Se habla español.

Estate and Gift Taxes

The latest Tax Act complicated Estate Planning for all but the poorest Americans. The estate tax ends in 2010 and I replaced by a capital gains tax on inherited assets, with some limited relief to spouses. Cautious tax payers must now review their estate plans on an annual basis to ensure maximum savings.

The exemption from federal estate tax until 2010:

Tax Rates on taxable assets top out at 50% in 2002 and decrease to 45% in 2009, then go to zero in 2010, but new capital gains tax systems begins in 2010. Therefore, it is critical to keep your estate which is subject to taxation under the exemption until 2010.

How do I Avoid Estate Taxes? Careful analysis and expert advice are necessary to maximize tax avoidance and savings. The options are many. You should choose the option which maximize tax savings while not interfering with your lifestyle.

What about Florida and Other State Death Taxes? States commonly impose estate or death taxes in addition to the Federal Estate Tax. Florida now imposes a tax formula which results in no additional tax being paid, but this may change.

Medicaid, the Middle Class Public Benefit

Many Americans will be forced to seek skilled care in a nursing home and will be bankrupted by the costs. Our Federal health system provides Medicaid skilled nursing home benefits to all qualified Americans as a public benefit. This is not welfare for the poor. The rules allow us to keep substantial assets in our estate while the government assists with nursing home bills. Proper planning can provide proper care for you and your spouse, and allow you to retain hundreds of thousands of dollars in assets for your heirs. The key here is proper planning and structuring your assets to meet the Medicaid criteria.

Avoid Litigation After Death

Many family members feel "cheated" if another family member is favored in a Will or Trust. A Will Contest or other law suit is easily filed against your beneficiaries. The most common complaint is that the decedent was "unduly influenced" by another, resulting in a lost inheritance. Law suits can be filed even if you gift all your property away before your death. The complaint used is that your beneficiary tricked you into giving the property to him or her, even if you were competent. The disadvantage your beneficiary has is that you are not able to testify after death. The result is costly delay in administration of your estate, and perhaps a judgement against your beneficiary. The proper way to protect your beneficiaries is to seek an attorney's assistance to ensure that your last wishes are carried out.

Contact Cape Coral, Florida Estate Tax lawyer Robert Adamski. Se habla español.

Other Topics to Consider

Second Marriage Planning protects both sides of the family.

How do Retirement Funds Fit In? Most retirement accounts and plans allow the owner to name a beneficiary and avoid probate administration at death. Individual Retirement Accounts can be rolled over to a beneficiary at the owner's death. Unfortunately, the proceeds of most retirement plans are subject to income tax when withdrawn and also subject to estate taxes at the owner's death.

Organizing a successful Estate Plan

Call our office to obtain a free Estate Planning Organizer which will pose important questions you should answer to complete your plan.

Avoid the worst Estate Planning mistake. Procrastination. Call for an appointment and get the job done. It will be less painful and less expensive than you expect.

A Free Initial Estate Planning Consultation with Attorney Adamski is always available. Call for your appointment and we will send you an organizer to assist in your consultation.

The Four Cornerstones of an Estate Plan

1. Will or Trust to transfer your property at death.
2. Power of Attorney to help in transfers of property and health care decisions during your lifetime.
3. Living Will to avoid the cost and family strife which occurs if a person is in a persistent vegetative state.
4. Health Care Surrogate Designation to name a person to make your health care decisions if you become unable to do so.

The Worst Pitfall: Loss of Control

You are putting your personal security at risk if you lose control of the assets. Very often well meaning people place their assets and personal welfare in jeopardy. What to avoid:

• Joint ownership with others. Your joint owner's problems become your problems, and you must rely on your joint tenant for your financial security. Joint ownership usually imposes unexpected ordinary income and / or capital gains taxes.
• Gifting your assets to others, including children, with the hope they will follow your instructions. A trust for your benefit is a much better choice.
• Planning advice from non-attorneys will always be incomplete or incorrect, and will expensive for you and your family.