What is the difference between a Living Will and a Living Trust?

What is the difference between a Living Will and a Living Trust?

A Living Will details the health care that you want if you end up on life support.

A living will, also called a health care directive, gives you the power to take control over what medical treatment you do or don’t want administered, in the event that you become unconscious or incapacitated.

To learn more about health care directives, watch this short video.

A Living Trust (also known as a revocable living trust) is created during an individual’s lifetime where a designated person, the trustee, is given responsibility for managing that individual’s assets for the benefit of the eventual beneficiary.

A trust is a legal document that you create during your lifetime. Just like a will, a  trust spells out your wishes with regard to your assets, your dependents, and your heirs. A trust can bypass the costly and time-consuming process of probate. This lets your successor trustee (who fills basically the same role as an executor of a will) to carry out your instructions as documented in your trust at your death. Your  successor trustee also steps in if you’re unable to manage your financial, healthcare, and legal affairs due to incapacity.

How do you know if you need a will or a trust? 

Call us at (813) 902-3189 for a free 15 minute consultation. Click here to schedule it.

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How do you know if you need a Will or Trust?

Do you need a Will (Last Will and Testament) or Revocable Living Trust? How do you choose?

Are you interested in a will or revocable living trust? Wills and trusts are useful estate planning tools. They serve different purposes and can even work really well together. First, let’s go over key differences between wills and trusts.

Will characteristics:

  • A will goes into effect only after you die.
  • It only covers property that is in your name at your death.
  • A will passes through a court process called Probate. The Probate court oversees the will’s administration and ensures the will is valid and that the property gets distributed the way the deceased wanted.
  • Because a will passes through Probate, it’s a public record.
  • A will lets you name a guardian for your minor children.

There is a good chance that if you care about how beneficiaries use what you’re leaving them or want someone else to manage it, you’re going to need some type of trust.

The two main types of trusts are testamentary trusts and revocable living trusts. One type of trust is inside your will and the other type of trust is a stand-alone document, called a trust agreement.

Testamentary trust characteristics:

  • A testamentary trust is a trust that you create through your will. A will is only “activated” after you die and after your will goes through Probate. Therefore, a testamentary trust only goes into effect after your death.
  • For our clients with young children who are using a will instead of a revocable living trust, we recommend a testamentary trust inside the will.  That is because children can’t inherit directly while they are minors. And even if they’re not minors, it’s not a good idea to let an 18-year old inherit a lot of money at once!  With a testamentary trust, your trustee (the person you trust to manage money for your children) can provide for your children’s healthcare, education, maintenance and support while your children are minors.
  • You can include provisions in your trust to allow your beneficiaries to inherit at ages and stages, all at once, or for the funds to stay in the trust for that beneficiary’s care and support.
  • Funds that go inside the testamentary trust first have to go through the Probate court process before they wind up inside the trust.
  • The will (and the testamentary trust that’s inside it) is filed with the Probate court.

Revocable living trust characteristics:

  • A revocable living trust is a trust that you create during your lifetime. It is  “revocable” because during your lifetime, you can make changes to it or even revoke it.
  • You can use a trust to manage property during your lifetime, at your death or afterwards.
  • A trust covers only property that you transfer into it during your lifetime, or after your death (via beneficiary designations).
  • Property that passes through your trust avoids the Probate court process.
  • The revocable living trust stays private because it’s not filed with the Probate court.
  • You can include provisions in your trust to allow your beneficiaries to inherit at ages and stages, all at once, or for the funds to stay in the trust for that beneficiary’s care and support.

So if you have a revocable living trust, do you still need a Will?

Yes, you still need a will, a pour-over will. That is generally a very streamlined will that basically “pours” everything that needs to go through Probate to your revocable living trust. We also call this a “just-in-case” will, in case there is property you forget to transfer to your revocable living trust.

Also, if you have minor children, you can use your pour-over will to legally  nominate guardians for your children, in case you and their other parent dies when they are minors.

OK so do you need a will, will with testamentary trust provisions or a revocable living trust?

It depends on different factors and on your priorities such as:

  • Do you want to maintain privacy for your beneficiaries?
  • What is your budget for estate planning? (A revocable living trust costs more to set up than a will).
  • Do you want to avoid Probate?
  • Do you prefer everyone to stay out of Probate court as much as possible?

We can help you sort this out so that you can have peace of mind.

Call us at (813) 902-3189. Schedule a valuable Planning Session at no cost to you.

Learn more about wills, trusts and guardianships here.

You can also learn more about revocable living trusts here.

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What should you know about naming beneficiaries?

Do you have a beneficiaries in your Last Will and Testament, Life Insurance and Retirement Accounts? Here are some important things you need to know.

Beneficiaries of a Last Will and Testament have to wait.

First, you use a Will (Last Will and Testament) to give assets to your beneficiaries, your beneficiaries don’t inherit automatically. Those beneficiaries will need to wait until the probate court process is over before they can inherit. In some cases, this can take many months or even years. If the estate is complex, the legal fees can deplete that inheritance.  If avoiding probate is a top priority, consider a Revocable Living Trust as part of your estate plan.

Go here to learn more about wills and trusts.
Go here to learn more about avoiding probate.

Your Last Will and Testament does not control your retirement plan and life insurance policy benefits. 

Second, assets in a life insurance policy or retirement plan pass to your beneficiaries directly, bypassing your Will (Last Will and Testament).  Your beneficiaries will receive these assets after completing a claim form.

Minor children should not inherit directly. Consider a trust.

Don’t name a minor child as the beneficiary of a life insurance policy or other assets. That is because minor children cannot inherit assets directly. Instead, the wise move is to create a trust to hold these assets for the benefit of a minor child. Name a trustee to oversee the management and distribution of the funds in a way that complies with your wishes.

Go here to learn more about trusts.

Be careful how you name retirement plan beneficiaries.

Unfortunately, most beneficiaries of a retirement plan take the cash immediately, which may not be your intention.  Don’t name your estate as a beneficiary.  That is because that may not allow your spouse or younger beneficiary to take advantage of an IRA rollover or some provisions that could allow your IRA to grow tax-deferred over many years.

If there are multiple beneficiaries, name them.

Finally, if there are multiple beneficiaries for an insurance policy or retirement plan. Don’t make name one person, assuming he/she will distribute to other beneficiaries.  Instead, designate a separate share for each beneficiary.  Does a beneficiary have special needs? If so, create a trust for their share so any inherited assets don’t disqualify them from important government benefits.

Call our office today at (813) 902-3189 to schedule a time for us to talk about an Estate Planning Session.
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How can you use estate planning to take care of your pet?

If you have a pet, he or she probably feels like part of your family.  So it makes sense to take care of your pet if you become incapacitated or pass away. Because if you don’t make any plans, your beloved companion could end up in an animal shelter or worse.

The law looks at pets as personal property. So you can’t just name your pet as a beneficiary of your will or trust without some careful planning.

Be careful with your Will.

Since you can’t name your pet as a beneficiary, you might consider leaving your pet and money for its care in your will to a trusted person who would be your pet’s new caregiver. But your pet’s new caregiver would not be legally required use the funds properly. In fact, your pet’s new owner could legally keep all of the money for themselves and drop off your beloved friend at the local shelter.

You’d like to think that you could trust someone to take care of your pet if you leave him or her money in your will to do so. But it’s impossible to predict what circumstances might arise in the future that could make adopting your pet impossible.

Also, a will has to go through the court process known as probate, which can last for months. That can leave your pet in limbo for a while.  And remember that a will only goes into effect upon your death, so if you’re incapacitated by accident or illness, it would do nothing to protect your companion.

Consider a pet trust.

A pet trust in a revocable living trust in order to be completely confident that your pet is properly taken care of and the money you leave for its care is used exactly as intended.

This way, you can lay out detailed, legally binding rules for how your pet’s chosen caregiver can use the funds in the trust. And unlike a will, a pet trust does not go through probate. So it goes into effect immediately and works in cases of both your incapacity and death.

Also, a  pet trust allows you to name a trustee. That trustee is legally required to manage the trust’s funds and carry out your wishes. And to provide a system of checks and balances to ensure your pet’s care, you might want to name someone other than the person you name as caregiver as trustee.

Do right by your pet.

With Myrna’s guidance and support, you’ll have peace of mind knowing that your beloved pet will receive the kind of love and care it deserves when you’re no longer around to offer it. Contact us today to get started.

Call us at (813) 902-3189.

Case Update: Jeffrey Epstein’s Estate

When the wealthy financier, Jeffrey Epstein, died under mysterious circumstances (the Medical Examiner determined that is a suicide, but many people are skeptical), he left behind a huge fortune close to $600 million, along with creditors and lawsuits. Just two days before his death, he signed his Will, which left his estate to his trust, the 1953 Trust. Because that Trust is not filed with the Court, its contents should remain private, barring litigation involving the Trust’s beneficiaries or trustee’s duties.

In the Will, Epstein is listed as a resident of the U.S. Virgin Islands. After his death, his Will was filed in the U.S. Virgin Islands, probably because his attorneys thought the probate process would be more private.

For regular people who are not rich or famous, privacy is still a huge deal. That is why many people opt for using trusts in their estate planning, instead of just relying on a Will.

Here are some important differences between a Will and a Trust:

Will characteristics:

  • A will goes into effect only after you die
  • A will only covers property that is in your name at your death
  • A will passes through a court process called Probate. In Probate, the court oversees the will’s administration and ensures the will is valid and the property gets distributed the way the deceased wanted.
  • Because a will passes through Probate, it’s a public record.
  • A will allows you to name a guardian for children (Note: Our firm recommends that in addition to this, you use a stand alone guardian nomination.)

Trust characteristics:

  • A trust can be used to begin distributing property before death, at death or afterwards.
  • A trust covers only property that has been transferred to the trust. In order for property to be included in a trust, it must be put in the name of the trust.
  • A trust passes property outside of probate, so a court does not need to oversee the process, which can save time and money.
  • A trust remains private Unlike a will, which becomes part of the public record, a trust can remain private.

Secure your wealth, your legacy, and your family’s future

Regardless of how much or how little wealth you plan to pass on—or stand to inherit—it’s vital that you take steps to make sure that wealth is protected and put to the best use possible. We have unique processes and systems to help you put the proper planning tools in place to ensure the wealth that’s transferred is not only secure, but that it’s used by your loved ones in the very best way possible.

By working with us, you can rest assured that the coming wealth transfer offers the maximum benefit for those you love most.

Call our office today at (813) 902-3189 to schedule a Planning Session and mention this article to find out how to get this $500 session at no charge.

 

Part 2: The real cost of not planning

This article is part of a series discussing the true costs and consequences of failed estate planning. The series highlights a few of the most common—and costly—planning mistakes we encounter with clients. If the series exposes any potential gaps or weak spots in your plan, meet with us to learn how to do the right […]

More Tips on Creating an Estate Plan That Benefits a Child With Special Needs

Parents want their children to be taken care of after they die. But children with disabilities have increased financial and care needs, so ensuring their long-term welfare can be tricky. Proper planning is necessary to benefit the child with a disability, including an adult child, as well as assist any siblings who may be left with the care taking responsibility.

Special Needs Trusts

The best and most comprehensive option to protect a loved one is to set up a special needs trust (also called a supplemental needs trust). These trusts allow beneficiaries to receive inheritances, gifts, lawsuit settlements, or other funds and yet not lose their eligibility for certain government programs, such as Medicaid and Supplemental Security Income (SSI). The trusts are drafted so that the funds will not be considered to belong to the beneficiaries in determining their eligibility for public benefits.

There are three main types of special needs trusts:

#1 A First-Party Trust

A first-party trust is designed to hold a beneficiary’s own assets. While the beneficiary is living, the funds in the trust are used for the beneficiary’s benefit, and when the beneficiary dies, any assets remaining in the trust are used to reimburse the government for the cost of medical care.

These trusts are especially useful for beneficiaries who are receiving Medicaid, SSI or other needs-based benefits and come into large amounts of money, because the trust allows the beneficiaries to retain their benefits while still being able to use their own funds when necessary.

#2 A Third-Party Trust

The third-party special needs trust is most often used by parents and other family members to assist a person with special needs. These trusts can hold any kind of asset imaginable belonging to the family member or other individual, including a house, stocks and bonds, and other types of investments.

The third-party trust works like a first-party special needs trust in that the assets held in the trust do not affect a beneficiary’s access to benefits and the funds can be used to pay for the beneficiary’s supplemental needs beyond those covered by government benefits. But a third-party special needs trust does not contain the “payback” provision found in first-party trusts. This means that when the beneficiary with special needs dies, any funds remaining in the trust can pass to other family members, or to charity, without having to be used to reimburse the government.

#3 A Pooled Trust

A pooled trust is an alternative to the first-party special needs trust.  Essentially, a charity sets up these trusts that allow beneficiaries to pool their resources with those of other trust beneficiaries for investment purposes, while still maintaining separate accounts for each beneficiary’s needs. When the beneficiary dies, the funds remaining in the account reimburse the government for care, but a portion also goes towards the non-profit organization responsible for managing the trust.

Life Insurance

Not everyone has a large chunk of money that can be left to a special needs trust, so life insurance can be an essential tool. If you’ve established a special needs trust, a life insurance policy can pay directly into it, and it does not have to go through probate or be subject to estate tax. Be sure to review the beneficiary designation to make sure it names the trust, not the child.

You should make sure you have enough insurance to pay for your child’s care long after you are gone. Without proper funding, the burden of care may fall on siblings or other family members. Using a life insurance policy will also guarantee future funding for the trust while keeping the parents’ estate intact for other family members. When looking for life insurance, consider a second-to-die policy. This type of policy only pays out after the second parent dies, and it has the benefit of lower premiums than regular life insurance policies.

ABLE Account

An Achieving a Better Life Experience (ABLE) account allows people with disabilities who became disabled before they turned 26 to set aside up to $15,000 a year in tax-free savings accounts without affecting their eligibility for government benefits. This money can come from the individual with the disability or anyone else who may wish to give him money.

Created by Congress in 2014 and modeled on 529 savings plans for higher education, these accounts can be used to pay for qualifying expenses of the account beneficiary, such as the costs of treating the disability or for education, housing and health care, among other things. ABLE account programs have been rolling out on a state-by-state basis, but even if your state does not yet have its own program, many state programs allow out-of-state beneficiaries to open accounts.

Although it may be easy to set up an ABLE account, there are many hidden pitfalls associated with spending the funds in the accounts, both for the beneficiary and for her family members. In addition, ABLE accounts cannot hold more than $100,000 without jeopardizing government benefits like Medicaid and SSI. If there are funds remaining in an ABLE account upon the death of the account beneficiary, they must be first used to reimburse the government for Medicaid benefits received by the beneficiary. Then the remaining funds will have to pass through probate in order to be transferred to the beneficiary’s heirs.

However you decide to provide for a child with special needs, proper planning is essential. We can help you determine the best plan for your family.

This article is a service of the Law Firm of Myrna Serrano Setty, P.A. We don’t just draft documents, we help you make informed and empowered decisions about life and death, for yourself and the people you love. That’s why we offer a Planning Session, during which you will get more financially organized than you’ve ever been before, and make all the best choices for the people you love. Call our office today to schedule a Planning Session. Mention this article to learn how to get this $500 session at no charge. 

Call us at (813) 902-3189.

 

5 Common Estate Planning Mistakes and How to Avoid Them

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Since estate planning involves thinking about death, many people put it off until their senior years, or simply ignore it all together until it becomes too late. This kind of unwillingness to face reality can create a major hardship, expense, and mess for the loved ones and assets you leave behind.

While not having any estate plan is the biggest blunder you can make, even those who do create a plan can run into trouble if they don’t understand exactly how estate plans work.

Here are some of the most common mistakes people make with estate planning:

1. Not creating a will

While wills aren’t the ultimate estate planning tool, they are one of the bare minimum requirements. A will lets you designate who will receive your property upon your death, and it also allows you to name specific guardians for your minor children. Without a will, your property will be distributed based on your state’s intestate laws (which probably don’t align with your wishes), and a judge who doesn’t know you or your family, will choose a guardian for your children under 18. On top of that….your kids will get whatever you own outright, with no guidance, direction, or intention, as long as they’re over 18.

2. Not updating beneficiary designations

A lot of times people forget to change their beneficiary designations to match their estate planning desires. Check with your life insurance company and retirement-account holders to find out who would receive those assets in the event of your death.

If you have a trust, you’ll likely want the trust to the beneficiary. This does not happen automatically upon creating a trust. You actually have to make the change. See the section below for more on funding your trust.

You also never want to name a minor as a beneficiary of your life insurance or retirement accounts, or even as the secondary beneficiary. If they were to inherit these assets, the assets become subject to the control of the court until he or she turns 18.

3. Not funding your trust

Many people assume that simply listing assets in a trust is enough to ensure they’ll be distributed properly. But this isn’t true. Some assets—real estate, bank accounts, securities, brokerage accounts—must be “funded” to the trust in order for them to be actually transferred without having to go through court. Funding involves changing the name on the title of the property or account to list the trust as the owner. Whenever you acquire new assets after your trust is created, you must make sure those assets are also titled into your trust.

Unfortunately, many people have trusts, but their assets aren’t actually in the trust. Crazy, right?!? But we see it all the time. You need to make sure your assets are inventoried, titled properly, and the inventory is maintained throughout your lifetime, so your assets aren’t lost and don’t get stuck in court upon your incapacity or death.

4. Not reviewing documents

Estate plans are not a “one-and-done” deal. As time passes, your life circumstances change, the laws change, and your assets change. Given this, you must update your plan to reflect these changes—that is, if you want it to actually work for your loved ones, keeping them out of court and out of conflict.

We recommend reviewing your plan annually to make sure its terms are up to date. And be sure to immediately update your estate plan following major life events like divorce, births, deaths, and inheritances. We’ve got built-in processes to make sure this happens—ask us about them.

Moreover, an annual life review can be a beautiful ritual that puts you at ease knowing you’ve got everything handled and updated each year.

5. Not leaving an inventory of assets

Even if you’ve properly “funded” your assets into your trust, your estate plan won’t be worth much if heirs can’t find your assets. Indeed, there’s more than $58 billion dollars worth of lost assets in the U.S. coffers right now. Can you believe that? It happens because someone dies or becomes incapacitated but their assets cannot be found.

That’s why we create a detailed inventory of assets, indicating exactly where to find each asset, such as your cemetery plot deed, bank and credit statements, mortgages, securities documents, and safe deposit box/keys. Not to mention your digital assets like social media accounts and cryptocurrency, along with their passwords and security keys. We cover all of this in our plans.

Beyond these common errors, there are many additional pitfalls that can impact your estate planning. At our firm, we guide you through the process, helping you to not only avoid mistakes but also implement strategies to ensure your true family’s legacy will continue to grow long after you’re gone.

This article is a service of the Law Firm of Myrna Serrano Setty, P.A. We don’t just draft documents, we help you make informed and empowered decisions about life and death, for yourself and the people you love. That’s why we offer a Planning Session, during which you will get more financially organized than you’ve ever been before, and make all the best choices for the people you love. Call our office today to schedule a Planning Session. Mention this article to learn how to get this $500 session at no charge. 

Call us at (813) 902-3189.