Planning your estate can be a long and detailed process. It is something that you truly want in the hands of a professional. In addition to the initial complexity of planning an estate, it is something that over time, constantly grows, changes, and evolves as you do. Over time, you grow older, acquire or subtract property and your belongings look different than they once did. Leaving your estate planning with a professional allows you to relax so that all of these changes are accounted for.

Estate planning is a process designed to avoid probate upon the disability (living probate or guardianship) or death of an individual and to make sure that your heirs receive the property that you want them to receive and when you want them to receive it. The avoidance of probate is the fastest and most cost effective way to transfer property to your loved ones. For those with large estates, the revocable living trust can be written to reduce or eliminate the Federal Estate Tax.


How does a living trust avoid probate upon disability or death?

With a living trust most, if not all, of your assets are owned by your trust rather then owed by you in your individual name. Probate handles only those assets that are in your name at the time of disability or death.

What should be a part of my estate plan?

Any individual that owns more than $75,000 in assets, or any real estate (not time-shares), in his or her name should have a living trust. Another good candidate for a living trust is someone that owns property in more than one state. In addition, there should be a pour-over will, a durable power of attorney, a designation of healthcare surrogate, a living will and, perhaps, an anatomical gift form. These documents and others protect you during disability and at death and leave full instructions for your successor trustee.

Can I do my own living trust?

The best answer is no. Many attorneys are not qualified to prepare a living trust and a proper estate plan. The forms available in the office supply store would not help you either, since it takes many years to truly develop the expertise needed to develop the proper estate plan for an individual’s particular situation.

How about using the internet to prepare my estate plan?

Again, this is not a very good idea. First, you don’t know the experience level of the person that will actually prepare your estate plan. Second, you don’t know if he has asked you the pertinent questions regarding your estate and the state in which your property is located. Third, the old adage applies, “you get what you pay for”. So the best answer is to find a qualified estate planning attorney.

Aren’t living trusts expensive?

Not when you consider the savings that can be produced. As an example, a guardianship proceeding for an adult can range from $2,500.00 to $5,000.00 or more depending upon whether it is contested or non-contested. And the costs continue after the guardian has been appointed. There should be no guardianship proceeding if the incompetent individual has a living trust. The statutory attorney’s fees for probating at estate at death for an estate of $100,000 to $1 million are three per cent of the value of the estate. By switching one of my clients from wills to a living trust, it initially provided $1 million in savings to the clients’ estate at death. I always say “it’s not what it costs to get into the proper estate plan that matters, but rather what will it cost my family if I have don’t have the proper estate plan”.

Durable Powers of Attorney (DPOA)

The most powerful legal document is the Medicaid compliant Durable Power of Attorney. Many people already have Durable Powers of Attorney (DPOA) from their previously drawn estate plan. However, estimates range from 90% to 95% of those DPOAs will be inadequate in the Medicaid situation. You should consult with an Elder law attorney to be sure that your DPOA will allow you or your agent to carry out Medicaid planning on your behalf or your spouse’s behalf.

The second most powerful document that can be affective in Medicaid planning is a proper Medicaid planning will. It does no good to get someone qualified for Medicaid only to have them disqualified later on when the community spouse passes away unexpectedly.

The third most powerful document that can be affective in Medicaid planning is the Enhanced Life Estate Deed (aka “Lady Bird” Deed, named after Lady Bird Johnson the widow of President Lyndon Baines Johnson). This allows the homestead to bypass probate upon the death of the surviving spouse. (Remember sometimes the surviving spouse could turn out to be the Medicaid patient.) In addition to avoiding probate, the property will also bypass Florida Medicaid Recovery.

As mentioned above, there are additional legal ways and additional legal documents that can be a part of Medicaid planning. Please contact me with your Medicaid questions.