Wills, Trusts, & Estates

The Denman Law Firm is committed to assisting our clients in their goal to protect and preserve hard earned assets from taxes (estate, gift and income taxes) and in carrying out their desires for a plan of distribution upon their death. The Economic Growth and Tax Relief Reconciliation Act of 2001 that became law on June 7, 2001 will affect almost all existing estate planning and wealth protection. The Denman Law Firm is ready and equipped to review and update our clients existing estate plans or set up an estate plan for those in need of one. A natural part of that function focuses upon retirement and asset protection planning by utilizing tax avoidance tools available under the present tax laws. We also assist our clients in planning and implementing their plans for succession of the ownership and control of family businesses. Our services in this area of practice include:

Estate Planning

"Estate Planning" is a term that encompasses vast areas of consideration. It may including planning to avoid or minimize death taxes, the orderly passing of assets between generations, financial planning, incapacity and disability planning, medicaid planning, charitable giving and business succession planning. Traditionally estate planning attorneys drafted cheap wills with the expectation that profit would come from probate administration once the client died. In recent years it has become the choice of most sophisticated clients, even with moderate sized estates to chose the revocable living trust as the centerpiece of their estate plans and to place most of their assets into the trust during their lifetimes. Although the cost is greater for the client initially, upon the death of the client the heirs are able to avoid much more costly, protracted and sometimes frustrating probate proceedings in order to pass assets to heirs. Whether a will or trust is the clients choice we will prepare a Durable Power of Attorney and Advanced Health Care Directives for our clients as an adjunct to the primary estate planning documents.

Our firm is equipped to provide the estate planning services required for the simplest to the most complex of estates. A summary of the benefits of some of the various estate planning arrangements is outlined graphically below:

• No will: Your estate passes to heirs picked by the Legislature.
• Basic will: Generally passes everything to your spouse, if living, otherwise to your children when they reach age 18.
• Trust Will: May contain credit shelter and QTIP trusts or may pass everything to your spouse, if living, otherwise for children.
• Basic living trust: Designed to avoid probate and provide asset management. Used for smaller estates and single persons.
• CST with living trust: Designed to use the applicable credit amounts of both spouses.  Can often save over $300,000.00 in death taxes and probate fees.
• CST and QTIP with living trust: Same as the CST with living trust, plus it gives the first spouse to die more control over who will eventually receive his or her assets after the surviving spouse dies.  Also called a QTIP trust.

A.  Wills

There is no such thing as a "simple will". We urge you to take the process of preparing your Will seriously in order to leave a better document behind to govern the administration of your estate when you die. Taking the approach that you just "want to get it over with" as quickly as possible is not your best choice. You should not assume that your lawyer has a form to fit your needs; it is your Will, not your lawyer's. Your will can name a Personal Representative(s) (the person(s) to administer your estate when you die), the person(s) or entities to receive your property when you die, establish trusts for the benefit of family members who are unable or unwilling to manage their own assets, direct from which assets taxes, expenses, claims and other charges against your estate will be paid, and take advantage of very significant tax deductions and exclusions.

B.  Testamentary Trusts

Trusts under your will can be much less expensive and less complicated than establishing a guardianship or conservatorship through the courts for minor children, infirm parents or grandparents, or otherwise disabled beneficiaries. Special Needs Trusts can be set up to assure that a disabled or infirm beneficiary is not disqualified from receiving Medicaid or Social Security benefits. Trusts can also be effective in avoiding or minimizing substantial taxes.

C.  Revocable Living Trusts

The Living Trust is creating by preparing a Declaration of Trust during your life, generally appointing yourself as Trustee (during your life or until you become incapacitated) and your spouse or an adult child as Successor Trustee. With some exceptions, your assets should be transferred to the trust during your lifetime so as to take full advantage the the trust as the centerpiece of your estate plan.  You have complete control over the assets in the trust and can revoke the trust at any time during your lifetime. Upon your death, the assets of the trust are distributed to your beneficiaries in the same way they would be distributed pursuant to a Will. In recent years, living trusts have become increasingly more popular as the center piece of estate plans instead of Wills for many reasons. Some of the advantages of Revocable Living Trusts are outlined below:

          1.  Avoiding Probate.  This saves administrative chores, costs and attorneys fees when you die. Most statutory waiting periods, filing of specific court documents, securing of written consents or waivers from interested parties, and court appearances are avoided. Think of a will as an invitation to the probate court upon you death.  A Will based estate plan may also be ineffective to carry out your wishes. Often a will is mistakenly believed to apply to the very assets that do not go through probate due to titling in joint tenancy with right of survivorship, beneficiary designations on life insurance or retirement plans, and payable on death designations on accounts. This manner of titling may also hinder or prevent federal estate and gift tax planning and avoidance.

            2.  Preserving Privacy.  Unlike the requirements to probate a Will, no inventory of assets must be filed to show the makeup and extent of the trust assets. Only you, your Trustee and your beneficiaries will know the value of trust property, how it is to be distributed and the names of the beneficiaries. Therefore, there is no public record of the trust assets.

            3.  Avoiding Guardianship or Conservatorship.  The expense and embarrassment of a formal guardianship or conservatorship proceeding is avoided in the event of your mental or physical incapacity or disability because your Successor Trustee can act as guardian of your property.

            4.  Will Contests and Family Disputes Are Less Likely.   A living trust is less likely to be contested by your heirs than a will and therefore discourages family disputes.

            5.  Avoiding Probate in More Than One State.  If you own real estate in more than one state, a living trust will avoid probate in each state where the real estate is located provided that the real estate is titled in the name of the trust. If you utilize a Will for your estate plan, then it must be probated in each state where you own real estate, increasing the cost and time to settle the estate and distribute your property to your heirs.

        Durable Power of Attorney. The Durable Power of Attorney permits another person (the attorney-in-fact or agent) to act on behalf of the principal (the person signing and authorizing the power of attorney) during the principals lifetime. The Power of Attorney may be drafted so that it becomes effective upon the disability or incapacity of the principal (springing power) or so that it is effective immediately upon executing it.  A Power of Attorney may be drafted with very specific and  limited powers.

       Durable Power of Attorney for Health Care.  A Durable Power of Attorney for Health Care grants limited and specific powers to a health care surrogate to make health care decisions for the the principal if he or she is unable to make them because of mental or physical incapacity. It is preferable to use the statutory form of the Durable Power of Attorney for Health Care approved by your state of residence, since this is the form the medical profession in your state will be most familiar with.  Florida does have such a statutory form. It can also be utilized to give directions regarding your wishes for funeral and interment.

         Living Wills.  The "Living Will" is similar to a Durable Power of Attorney for Health Care but gives specific powers to the health care surrogate to make decisions regarding continuation of life support if you are determined to be in a terminal condition, end stage condition or a vegetative state.  

Asset and Wealth Protection

Another important consideration in Estate Planning is to protect assets from creditors, potential creditors and avoidance of taxes. The Denman Law Firm is committed to assisting our clients in their goal to protect and preserve hard earned assets. By utilizing asset protection strategies what was intended to benefit beneficiaries can often be protected from the claims of creditors, including claims for alimony and child support, judgment creditors, and governmental claims for taxes.  The Denman Law Firm is ready and equipped to review and update our clients existing estate plans or set up an estate plan for those who have none, utilizing asset and wealth protection strategies. For a more detailed discussion of those strategies please visit our Asset and Wealth Protection page.

We encourage you to email us utilizing the form below or if you have need for an immediate response, please call us.

Please fill out the form below or call (954) 727-9650

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