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Dye, Deitrich, Petruff &
St. Paul, P.L.

1111 3rd Avenue West, Suite 300
Bradenton, FL 34205

Phone: (941) 748-4411
Fax: (941) 748-1573
Email: info@dyefirm.com

Estate Planning, Wills and Trusts

We all do our best to prepare for the future. From purchasing insurance policies that protect our assets and health to investing for our retirement we routinely make decisions that will affect our future. But what about making sure your family is provided for in the event of your death? Few of us like to think about our end of days, but it is important to have your affairs in order to ensure that your loved ones are cared for and your assets are distributed or maintained in the way that you intend.

Estate planning is a process in which a person formulates specific documents based on the person's particular circumstances and needs to a
ssure that his or her needs will be met during his or her lifetime, especially the later years, and their goals as to the ultimate distribution of their assets to their beneficiaries will be fulfilled. 

Your estate planning attorney will recommend various documents and particular provisions in these documents created to meet your specific needs. Some of these documents for consideration include:

Last Will and Testament

A Will provides for the orderly disposition of assets to beneficiaries and payment of the decedent's debts and obligations. The Will names a personal representative (executor) to administer the estate. It is prudent to name at least one alternate in the event that the first person named is unable to serve. The Will may permit the distribution of personal property by means of a separate memorandum, which is signed and dated by the individual making the Will, but can be changed over time. Many individuals never finalize their memorandums and hope instead that their children will distribute the personal property amicably. This often poses problems for children who otherwise have a good relationship. The memorandum can help to avoid some of these difficult problems.

An out of state will may be valid in Florida. Consult with your attorney to ensure that the will is still appropriate. If the Will is invalid, your goals may not be realized.

Revocable Living Trust

An individual should consider whether he or she is a candidate for a Revocable Living Trust (RLT).  The settlor (the person setting up the RLT) maintains control of the assets transferred to the RLT and may manage them for as long as the ability to do so continues.  If the settlor becomes incapacitated or infirm, the successor trustee can manage the assets of the RLT for the settlor's benefit and can distribute the assets to the beneficiaries after the settlor of the RLT passes away. 

Often, a person undergoes the time, effort and expense of diligently setting up the RLT but then fails to fund the RLT with his assets.  Merely executing (signing) the RLT itself is only the beginning.  The assets must be re-titled in the name of the RLT to avoid probate.  One must contact the bank or other financial institution holding each asset and change the title on the account or asset to the name of the RLT's trustee and include the name and date of the trust in the title.  For example:  "John R. Smith, as Trustee of the John R. Smith Revocable Living Trust dated January 1, 2008".  Some financial institutions may allow the title to be abbreviated.  For example:  "John R. Smith, Trustee U/A/D 1/1/08"  Some assets, such as bank accounts, investment accounts and real property, are easily placed in the RLT.  Other assets, including individual retirement accounts, are not generally recommended to be placed in an RLT.  If you have questions or concerns about the funding of your RLT and what assets should be placed in your RLT, please contact our firm.

One of the biggest tax savings that proper estate planning can provide to a married couple is a plan, used with RLTs or possibly a joint RLT (sometimes called a Family Trust) that uses each person's federal unified credit exemption. Over time, the exemption has gradually increased. Under the American Taxpayer Relief Act of 2012 passed on January 1, 2013, the federal estate tax exemption is made permanent at $5,000,000.00 per person, subject to an inflation adjustment. For 2015, the estate tax exemption is $5,430,000.00 per person. A married couple can shelter a total of $10,860,000.00 from federal estate taxes. Portability has also been made permanent under the new act. The portability provisions, which are complex, essentially allow the unused estate tax exemption of a deceased spouse to be used by the surviving spouse.  The state of Florida has no estate tax.

 If you have significant assets, your goal is often to insure that your spouse has the use of all of your assets until his death and that, after his passing, the assets pass to a number of beneficiaries in differing amounts or shares. The best way to accomplish this may be through an RLT. This is especially true if you and your spouse have significant assets. Proper planning will help a married couple minimize and sometimes eliminate estate taxes in the future.

Power of Attorney

This document allows the person named (the attorney-in-fact) to handle the affairs of another person (the principal). In Florida, they are generally structured as Durable Powers of Attorney, which means that they are also effective in the event that the principal becomes incapacitated after signing the document.

A Durable Power of Attorney may also be conditional upon the principal's lack of capacity, which would be exercisable after the principal's primary physician executes an affidavit stating that the principal lacks the capacity to manage his property.

The power of attorney can be structured broadly to permit the recipient of the power to handle any of the principal's business or personal affairs or the power of attorney can be limited specifically. For example, the power of attorney can be limited to the power to sell real estate. Durable powers of attorney can be critical for the orderly care of a person who later becomes incapacitated, dispensing with the need for a guardianship proceeding. However, it is critical that the power not be given to any person who might misuse it.

Advance Directives

Living Will
This document allows a person to declare that, should he or she have a condition from which there is no reasonable medical probability of recovery, life should not be artificially prolonged. The document provides for medication and procedures to alleviate pain and provide comfort. 

Health Care Surrogate Designation
This document allows an individual to authorize another person to make decisions regarding health care should the principal become incapacitated and unable to make those decisions.

The person designated (the surrogate) has the authority to speak to doctors regarding care, review medical records and authorize procedures to be undertaken on the principal´┐Żs behalf.

Preneed Guardian
A Declaration Naming Preneed Guardian is a document that nominates a person to serve as your guardian in the event of your incapacity.  This document may be used in a court guardianship proceeding to show the person you wish to serve as your guardian if you are determined to be legally incapacitated and require a court-appointed guardian.

At Dye, Deitrich, Petruff & St. Paul, P.L. let our experienced legal staff assist you with your legal needs pertaining to Estate Planning, Wills and Trusts. Please contact our office today at 941-748-4411 for further assistance.


Alexandra St. Paul