We are two months away from the revenge of the estate tax. Do you have a living trust in place? When was the last time you had it reviewed?

When you’re 40, chances are you’re not the same person you were at 20, and your estate plan should reflect the changes you’ve experienced. Here’s a rundown of the estate-planning tools you should have if you’re just beginning your life’s journey, midway through or approaching the final leg.

Young, single and carefree
If you’re over 18 and unmarried, execute four documents to make sure your loved ones can carry out your wishes:
1. A general durable power of attorney enables you to designate who will control your finances if you become incapacitated, whether it’s your parents or another loved one.
2. A health care proxy allows you to designate who will make medical decisions on your behalf in the same situation.
3. A living will lets you lay out your wishes regarding life-sustaining medical treatment.
4. Finally, a Health Insurance Portability and Accountability Act, or HIPAA, release allows your designated agent to discuss your medical condition without violating patient privacy laws. Without those documents, your loved ones may be forced to go to court to seek guardianship over you to assert those controls.

Single, but committed
If you’re in a long-term relationship but unmarried, you need to create a will or trust if you want your life partner to inherit your possessions.

We’re engaged!
A prenuptial agreement isn’t only for people who have a lot of money; it’s essential for everybody. A lot of people divorce because they’ve never had conversations about money. A prenuptial agreement forces people to engage in this financial conversation.

Just married
Revise your durable power of attorney, health care proxy and HIPAA release if you want there to be no question that your spouse should control your financial and medical decisions if you become incapacitated. If you don’t already have one, this is also the time for a will or trust. Rather than risk a fight between your spouse and parents over who should inherit, have a will or trust definitively state who should receive your assets. Also, if you own a home, you should purchase a term life insurance policy that will pay off your mortgage if one spouse dies.
Finally, change your beneficiary designations on such things as health insurance and investment plans so they pass to your spouse. A lot of people think when they get married, those things change on their own, and they don’t.

Children
If you have children, update your will to nominate a guardian to step in if you and your spouse pass away. You should also include provisions in your will or a separate revocable trust so that your child doesn’t inherit everything at the age of 18. A revocable trust allows you to appoint a trustee to handle any money your child inherits. The trustee can use it to support your child as the child grows up, and you can specify at what age your child can receive the money, along with any reasons your child should get it before that age, such as starting a business or buying a house. You can also specify that the trustee can withhold money if your child has a gambling problem, is in the midst of a divorce, or there’s another situation that makes it inappropriate to inherit.
You’ll also need a separate guardianship nomination — sometimes called an emergency guardianship proxy — that nominates a guardian to care for your child if both parents are incapacitated. That’s helpful in simpler situations as well, such as when both parents take a vacation and a child needs emergency medical treatment.
Each time you have another child, be sure your estate planning documents address all of your children, and don’t forget to increase your life insurance. You need about $1 million to care for a child from birth to college. If you have a special-needs child, you should have your attorney set up a special-needs trust, which allows you to provide for your child without disqualifying the child from government benefits.

Divorce and Second-Marriages
If you’re separating or divorcing, you probably don’t want your spouse to still have all the authority to make decisions on your behalf and access your medical and financial information. You should revoke those documents, including beneficiary designations, or sign new ones. A divorce decree doesn’t magically change those things.
If you remarry, revise your will and trust documents to reflect the proper beneficiaries. Most people want to share with their new spouse but also want to provide for their separate children at their death.

Middle-Ages
As you reach your 40s and 50s, you should consider purchasing long-term care insurance, which covers the cost of long-term care or a nursing home.

Retirement
Review designations on your durable power of attorney, health care proxy, and HIPAA release to be sure the people you’ve named are still in your life and willing and able to serve in that role. A lot of people at this stage also start planning their funeral to make sure that’s in order.

No matter what your age or asset level, you need to have some sort of estate plan in place. Please take the opportunity to call our office and schedule a free consultation to discover how best to protect yourself, your assets, and your family.

It’s nice that the NFL is able to reverse mistakes by using instant replay. Unfortunately, there is not instant replay for mistakes made in the estate planning process. The Estate Tax will jump up to 55 percent in just three months. Are you certain that you are protected? Call the estate planning attorneys of Wild Felice & Pardo for a free consultation and put your worries to rest.

1. Waiting too long to start planning. The longer your asset protection plan has been in place, the stronger it will be. It will also cost less to do the planning long before you have a problem. Once a lawsuit has been filed against you, any transfers you make can be overturned. In order to battle a lawsuit effectively, make sure you have an asset protection plan in place long before you need it.
2. Mistakenly committing fraudulent transfers. If you transfer assets to a friend or family member in order to avoid losing them during a settlement, you may find it does you no good. This is not illegal, but the courts can reverse the transfer and hold the transferee partially responsible.
3. Trying to hide your assets. This is no longer possible. Even moving assets offshore does not prevent them from being discovered. Eventually, lawyers will uncover the existence of the asset. In some cases, having the asset offshore may protect it, but it will not prevent it from being discovered.
4. Assuming you can outsmart the creditors. Those trying to collect their debt and the lawyers working for them have done this before. You will not figure out a way around the system.
5. Handing control of your assets over to someone else. Often called the “poor man’s” asset protection, signing over your wealth to another person is never a good idea, even if he is a trusted friend or family member. You may have to give up some control at some point, but deciding you will protect your assets by giving them over to a sibling or adult child is a mistake. Discuss your options with an experienced asset protection attorney before proceeding.
6. Assuming asset protection and estate planning are the same thing. Asset protection is part of any strong estate plan but they are not the same thing. It is important to remember a living trust does nothing to protect you from creditors.
7. Confusing bankruptcy law and asset protection law. In a state like Florida, newer bankruptcy laws do not affect the unlimited homestead exemptions. You have less protection in bankruptcy court, so filing for bankruptcy should be used as a last resort.
8. Assuming it is too late to establish an asset protection plan. It is never to late to do this. Doing something is better than just allowing the courts to have their way with you. At least make an effort to protect your assets. You never know when you may be faced with a situation where your assets are at risk.
9. Not getting your foundation estate plan in place as part of your asset protection plan.
10. Trying to do it yourself. You only have one shot at protecting your assets correctly. Be sure to use an attorney that specializes in asset protection.

A Special-Needs Trust is a trust established for the benefit of a disabled beneficiary who is entitled to receive governmental assistance.  The intent of the trust is to provide for the beneficiary above-and-beyond the supplemental assistance without accidentally turning that Federal aid “faucet” off.  The correct drafting of this type of trust is very important since errors can result in the loss of government assistance or trust income. 

The payment of income and principal should be entirely left to the discretion of the trustee and the beneficiary should never be given the option to act as their own trustee.  In addition, cash payments should never be made directly to the beneficiary.  Instead, the trust should simply pay for the items that are needed by the beneficiary.  This is important because any money the beneficiary receives may reduce their Supplemental Security Income or may even cause a total loss of Medicaid benefits.

The beneficiary, or their guardian, will ask the trustee to make a distribution.  The trustee will consider whether or not he or she is permitted to make the distribution and whether making the distribution is in the best interest of the beneficiary.  If the trustee agrees to the distribution, the trustee will pay for the good or service directly from the trust account to the vendor. 

Protective wording should be inserted in the trust to clarify that the trustee is to expend income and principal only after Federal, state, and local public assistance is received and exhausted.  The income and principal should only be used for the benefit of the beneficiary.  A spendthrift clause should also be included in the trust to avoid the possibility of the government’s attaching the trust property to be reimbursed for its public assistance payments.

Choosing an attorney to draft a Special-Needs Trust is not always an easy task.  Drafting a Special-Needs Trust is highly specialized and you want someone who is experienced in this area.  Choose someone whom you can trust and you feel comfortable with because the Special-Needs Trust will last for the lifetime of the beneficiary and your attorney will be a crucial part of your financial team. 

Michael D. Wild is a Florida attorney specializing in the areas of estate planning and asset protection.  For more information on successful Florida estate planning and asset protection techniques, please contact the South Florida law firm of Wild Felice & Pardo, P.A. at 954-944-2855 or via email at info@wfplaw.com to schedule your free consultation.  Protecting what you value most.

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