Estate Planning

Hileman Law maintains an active trusts and estates administration practice having represented numerous trusts and estates in all phases from creation to probate/inception to the final accounting. In trusts and estates practice, the firm helps clients in all matters of trusts and estates including preparation of estate planning documents and guides them through the complex legal processes involved.

We can assist you in estate matters that will help ensure that your heirs will be provided for and dictate how your assets will be distributed. After discussing your legal options, we can draft wills, trusts, powers of attorney and advance health care directives that convey your unique wishes.

• Living Will
• Last Will and Testament
• Revocable Trust
• Irrevocable Life Insurance Trust
• Special Needs Trust
• Durable Powers of Attorney
• Health Care Surrogate Designation

LIVING WILL

A living will is a legal document that a person uses to make known his or her wishes regarding life prolonging medical treatments. It is important to have a living will as it informs your health care providers and your family about your desires for medical treatment in the event you are not able to speak for yourself. Generally, a living will describes certain life prolonging treatments. You indicate which treatments you do or do not want applied to you in the event you either suffer from a terminal illness or are in a permanent vegetative state.

LAST WILL AND TESTAMENT

A Last Will and Testament is the legal document by which you identify those individuals (or charities) that are to receive your property and possessions on your death. These individuals and charities are commonly referred to as the beneficiaries under your Last Will and Testament. In addition, within the provisions of your Last Will and Testament, you nominate a Personal Representative to be responsible for the proper administration of your estate and the disposition of your property to your intended beneficiaries. The Personal Representative may be an individual or an institution. After your death, the person or entity you have nominated to be your Personal Representative petitions the court to be appointed Personal Representative of your estate. After being appointed, the Personal Representative manages your estate’s financial affairs and ensures that your property is distributed in accordance with your wishes as indicated in the Last Will and Testament.

REVOCABLE TRUST OR DECLARATION OF TRUST

A Revocable Trust is one of many estate planning tools that can benefit you and your family in the event of death or incapacity. The Revocable Trust is an agreement you create for your own benefit during your lifetime. With a revocable trust, you maintain complete control over the trust and may amend, revoke or terminate the trust at any time. Thus, the person establishing the trust essentially owns the assets while maintaining the ability to change the trust at any time prior to death. The advantages are avoidance of probate and ease of asset administration in event of incapacity and upon death.

IRREVOCABLE LIFE INSURANCE TRUST (ILIT)

An irrevocable trust is one in which the grantor completely gives up all rights in the property transferred to the trust, and retains no rights to revoke, terminate or modify the trust in any material way. When such a trust holds a life insurance policy, usually on the grantor’s life, it is an irrevocable life insurance trust.

The purpose of utilizing an irrevocable trust for your life insurance policies is so that the policy proceeds will be excluded from both of your estates (assuming you survive the transfer of the policies to the Trust by more than three (3) years.) In addition, the Trust is drafted so that any annual contributions to the Trust for purposes of meeting premium payment obligations with respect to the policies owned by the Trust qualify for the $14,000 per donee gift tax annual exclusion in light of the fact that we have included a withdrawal power therein in accordance with the results in the well known tax case, Crummey v. Commissioner of Internal Revenue, 397 F.2d 82 (9th Cir. 1968).

SPECIAL NEEDS TRUST

If you have special needs child, a special needs adult, or a disabled spouse, you want nothing more than to provide for your disabled family member. The concern is that if you leave an inheritance to your loved one, they would lose their Medicaid or other government benefits that have an asset limitation.

The answer may be to create a Florida Special Needs Trust, also referred to as a Supplemental Needs Trust. Remaining eligible for public benefits is the basis of the Special Needs Trust. It is a key element of any estate plan for a family that includes a person with a disability. This type of trust may also be set up for a disabled child or adult to pay for the expenses that insurance or Medicaid does not cover.

A Special Needs Trust allows you to leave funds to a person on public benefits without disqualifying them from those benefits. It is a tool that legally shields assets needed in the future to care for a loved one who cannot care for themselves.

DURABLE POWER OF ATTORNEY

A power of attorney is a document whereby one may authorize another person to act on one’s behalf in financial matters. Until 1974 in Florida, a power of attorney became invalid once the principal was disabled. However, by placing certain language in the power of attorney, the document becomes a “durable power of attorney,” and thereby one may authorize any person, not just a family member, to act in one’s behalf, even though one is disabled. By signing a Durable Power of Attorney along with a Health Care Surrogate Designation, one can minimize the risk of a guardian being appointed. It is recommended that all Durable Powers of Attorney executed prior to October 2011 be updated to include changes made in the Florida laws effective on October 1, 2011.

HEALTH CARE SURROGATE DESIGNATION AND MEDICAL DURABLE POWER OF ATTORNEY

A Health Care Surrogate’s authority to make medical decisions on the Principal’s behalf is activated by the incapacity, either temporary or permanent, of the principal. The Health Care Surrogate Designation should cite the applicable statute with respect to issues concerning incapacity and the ability of the principal to provide informed consent for medical treatment. The Health Care Surrogate is to make medical decisions that comply with the known wishes or desires of the Principal.