Understanding Your Estate Planning Attorney

Life today is often unnerving.  Living in the midst of a pandemic has many of us focused on the future, much of which seems uncertain. In times like this, it is often wise to focus on the parts of your life that you can control.

Embarking upon estate planning, with a qualified and reputable attorney, is one of these things. Creating and executing a will and/or trust, along with a number of other important and relevant documents, ensures that significant decisions are made and a plan is put into place in case they are needed. 

Your attorney should be able to answer all of your questions and provide valuable advice when it comes to drafting your documents. That said, sometimes the terms used in this process may be confusing. Below, we are sharing brief definitions and information regarding the language you are likely to encounter.

Designation of Health Care Surrogate: In this document you authorize the individual of your choice to receive health information and make all healthcare decisions, including life prolonging procedures.

Durable Power of Attorney: This document provides you the opportunity to select an individual to serve your agent in a number of situations, assuming you are unable to make your own decisions.  It is wise to also name a second person in case the first is unable to fulfill this responsibility.

Irrevocable Trust: This is a trust which cannot be altered or cancelled by the creator of the instrument.

Living Will: Also known as an advanced healthcare directive, this document allows you to determine what steps you would like taken, via medical intervention, if you are no longer able to make these choices for yourself. 

Pour Over Will: This document, which goes hand-in-hand with a revocable living trust, ensures that existing assets, at the time of death, will be moved into the trust.

Revocable Trust: A trust which can be changed or cancelled by the settlor or creator of the trust at his/her request.

Special Needs Trust: A special needs trust is a legal arrangement and fidicuary relationship that allows a physically or mentally disabled or chronically ill person to receive income without reducing their eligibility for the public assistance disability benefits provided by Social Security, Supplemental Security Income, Medicare or Medicaid. In a fiduciary relationship, a person or entity acts on behalf of another person or people to manage assets.

Trust: A revocable trust is a document (the “trust agreement”) created by you to manage your assets during your lifetime and distribute the remaining assets after your death. The person who creates a trust is called the “grantor” or “settlor.” The person responsible for the management of the trust assets is the “trustee.” You can serve as trustee, or you may appoint another person, bank or trust company to serve as your trustee. The trust is “revocable” since you may modify or terminate the trust during your lifetime, as long as you are not incapacitated.

Will: This legal document identifies how you want your property distributed upon your death. It also allows you to identify guardians for your minor children. In order to be valid in the state of Florida, you must be at least 18 years of age to create a valid will. Additionally:

  • The will must be written (oral/recorded versions are not legal)
  • You must be of sound mind at the time of signing.
  • The will must be witnessed and notarized as determined by the law.

Roles and Responsibilities

When working with an attorney on the estate planning process, he or she will likely ask you to identify an individual or individuals to fulfill certain roles.  While you will be given more details when you speak with your estate planning attorney, it may be helpful to have some baseline information. Consider the following roles.

Beneficiary: The individual or individuals identified in your will or trust to receive your property.

Custodian: The individual identified to manage property inherited by a minor.

Executor: Also known as a Personal Representative, this person (or institution) is charged with carrying out the instructions as stated in the will.  If this person is female, she may also be referred to as an Executrix.

Grantor: One who creates a trust.  This individual may also be referred to as a Settlor.

Guardians: The individuals chosen to be legally responsible for minor children.

Heir: Those who inherit from the person making the will.

Secondary Beneficiary: An organization, person or persons you designate to inherit your property should your primary beneficiaries no longer be alive.

Successor Trustee: One who assumes the role and responsibilities of a trustee should he or she be unable to serve in this role.

Testator/Testatrix: This is the person (male/female) to whom the will belongs and who will sign it.

Trustee: The individual designated to administer a trust and manage all associated assets.

Legal Jargon

To the average person, legal jargon can be confusing. Below we have shared some common terms used in the estate planning process. The attorney with whom you work can provide additional details and answer any questions you may have.

Bequest: A provision in a will regarding property left to an individual.

Capacity: Legal competence. 

Codicil: An amendment to change a specific part of a will while keeping the rest of it intact.

Estate: The total of all assets owned by an individual at the time of death that may be leveraged to pay any outstanding debt.  This includes real property, personal property and liquid assets.

Estate Tax: Taxes assessed on assets left to beneficiaries after death.

Legacy: Personal property left upon death to another individual.

Personal Property: Refers to assets except for real estate.

Per stirpes: This Latin phrase literally translates to “by the branch”. When used in wills it means “in the bloodline” and refers to an estate being shared equally between closest bloodline relatives.

Probate: Probate is a court-supervised process for identifying and gathering the assets of a deceased person (decedent), paying the decedent’s debts and distributing the decedent’s assets to his or her beneficiaries. In general, the decedent’s assets are used first to pay the cost of the probate proceeding, then are used to pay the decedent’s funeral expenses, then the decedent’s outstanding debts, and the remainder is distributed to the decedent’s beneficiaries.

Real Property: Real estate and items attached to it including, but not limited to, houses.

In Conclusion

The information shared above is meant to provide general clarity regarding the terminology often used in the estate planning process. Your attorney should work closely with you and offer further explanation regarding documents or terms that are appropriate for your specific situation.

If you do not have an estate plan in place, you should consider moving forward and working on one. Preparing for the future and providing peace of mind for those whom you love is the greatest gift you can give. 

At Lisa I. Glassman, P.A., we are working from home and can assist you in updating your current documents and creating new ones, as needed. We are leveraging technology to meet with clients and facilitate the development and execution of wills and other estate planning documents. 

If you have not updated your estate planning documents (including your will) in the last three to five years or do not have any of the necessary documents in place, contact us today at 561-447-6676. We are ready to provide legal advice and answer any questions you may have. 

Since 2002, Lisa I. Glassman, PA has been providing outstanding legal counsel throughout South Florida. The firm has offices in Boca Raton, Lighthouse Point, Aventura and Weston. We skillfully handle Estate Planning, Wills, Trusts Probate matters and Real Estate law for our clients. Since 2002, we have provided outstanding advice and advocacy and will continue to do so.