Orlando Estate Planning. What is Probate? Estate Planning Using Trusts. Estate Tax Extended.
Most people think of estate planning in terms of “Who gets my property when I die.” While that is an important consideration, it is more important to help estate planning clients review their current holdings, and consider whether their properties and incomes are sufficient to carry them through retirement. Without doing so, there may be no property to leave anyone at death. Estate planners should help clients to minimize income taxation in life, and to plan for the least amount of “estate shrinkage,” including minimizing the costs of estate administration and estate taxes, and helping to prevent delays in completing estate administration.
Estate planners should also help identify people that need to be protected, such as minors or others that the client supports, and help make sure than an untimely death does not cause an otherwise avoidable disaster in the dependents’ lives. Lastly, estate planners should look at how clients hold title to their properties, and help recommend any beneficial changes that may increase protection of the properties.
A team approach is the best way to effectively address all of these considerations. An estate planning attorney should work with the clients’ current tax professionals, financial advisors, bankers and insurance agents, to help make sure than a comprehensive plan is in place. If a client does not have any of these key advisors, we can provide a number of qualified candidates for estate planning clients to consider.
What is Probate?
Probate is a court proceeding to establish the validity of a will. It is a legal process through which the assets of a deceased person are collected and inventoried, distributed to pay creditors' claims against the estate, and, if there are remaining assets, distributed to the heirs or beneficiaries. The probate court determines the validity of the will and oversees the process to ensure that the estate is properly administered. In Florida, the proceeding is designed to be accomplished within one year, however, many issues may arise which will cause the proceeding to last more than one year, such as unanticipated claims against the estate, the need to file estate tax returns, or disputes that may arise amongst beneficiaries.
Probate may be avoided if the decedent set up trusts in life and fully funded them.
Estate Planning Using Trusts
Trusts are a proven and effective way to take control of your property in life, and prevent it from becoming the subject of a guardianship or probate proceeding. Unlike probate or guardianship proceedings, trust administration is a private matter. If a trust settler becomes incapacitated or dies, a successor trustee steps in to take over the management of the trust property with court appointment or any other proceeding. By having a successor I trustee in place, there is no need for a guardian of the property. Further, this type of planning ensures that you will know who your successor is, whereas in a guardianship proceeding, the court appoints the person that will take change of your property.
Trusts are also an effective way to control where your property will go after you die. If you are on a second marriage, for example, and you and your spouse have wills, it is possible that your property may end up going to your spouse’s children and not your own. By funding your property into a trust during your life, you can still provide benefits to your spouse after you die, but retain control of your property so that it will end up going to the persons you choose.
Many trusts are set up to maximize estate tax credits and avoid estate taxes upon the death of the first spouse. Often however, after the first spouse dies, the surviving spouse will not take the appropriate action to complete the administration of the trust, and risk losing valuable tax benefits when he or she dies. We can help clients make sure that they have followed the steps necessary to preserve all available tax benefits after the first spouse dies.
Estate Tax Extended
On December 3, 2009, the U. S. House of Representatives passed a bill to extend the federal estate tax into 2010. Previously, the federal estate tax had been scheduled to be eliminated in 2010 and be replaced with capital gains taxes. Although the bill has not yet cleared the U. S. Senate, in light of existing budget deficits, it is likely to pass there as well paving the way for a permanent federal estate tax with an exemption of $3,500,000 per U. S. citizen or resident, and a maximum tax rate of 45%.