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Questioning the order in which to start "estate" planning.

Alpharetta, GA |

Currently have a Family Trust & Last Will & Testament. Were drawn up over 10 years ago in California. Beneficiaries have not changed. Currently living in GA and planning on moving to Florida in 2-3 years. Is current Trust still good? Would a Living Will be better? I am trying to make things easy on my daughters and keep away from probate. I was planning on doing whatever I need to do, utilizing Legal Zoom. Any advice?

Attorney Answers 5

Posted

More than likely your current trust is adequate (I would not say good). Trust law and tax law has changed dramatically over the past 10 years but not so much to make your trust useless. There are changes between GA, CA, and FL law but the more significant changes relate to your probate estate. If all your assets are properly owned by the Living Trust then the law that the trust says it uses will likely control.

For example a trust is a contract with yourself and if your CA Trust says use CA law then that is that.

The problem is that all of your assets are not likely owned by your Trust (unless you fully funded it). To do this you would need to change the ownership on every account. Otherwise what happens is all your assets go through your Will to be poured out to your trust. Your Will is going to be controlled by the law of your home most likely (some caveats exist).

It is impossible to give you advise without reading your trust / will / asset holdings but in my opinion you are more likely to be better off using your current (professionally prepared) Trust over a Legal Zoom do it yourself document. If your trust is simple and straight forward then you are probably fine. If your trust is complex it would be worth it to have it updated in the short term.

A Living Will designates if life support should be terminated. A Last Will and Testament is the document you are thinking of. It is an alternative to a trust and is subject to the laws of the probate court where you life.

BEST PRACTICE: Find an attorney licensed in GA and FL and have him update your documents. He will know both laws and it will save you money down the road if changes are needed when you move.

Disclaimer: The foregoing answer does not constitute legal advice, is provided for informational and educational purposes only for persons interested in the subject matter. Each situation is fact specific and may be subject to state specific laws. Without a comprehensive consultation and review of all the facts and documents at issue it is impossible to evaluate a legal problem fully. This answer does not create an attorney-client relationship. No Tax Advice - Circular 230 Disclaimer - Any information in this comment is not intended to constitute a comprehensive and complete tax consideration analysis, and may not be used by the taxpayer to eliminate or reduce penalties by the IRS or any other governmental agency, nor for the purpose of promoting, marketing or making recommendations to other persons on any tax-related matters.

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Posted

I can see from your question that you really do care about your family and what happens to them when you are gone. If I am correct, you want to have your plan reviewed by a GA estate planning attorney. While GA probate is fairly simple and not worth avoiding in many cases, I cannot say this about FL probate. So, in general, you should seek a GA EP attorney, who will likely recommend that you update your Financial POA, and Health Care Directive, the determine if your other current documents should be amended or totally re-done. Eventually, you will likely be better off using a revocable living trust as your primary EP doc since you will be moving to FL so you can try to avoid FL probate. This will also require you to move the title (ownership) of your assets to your RLT (other than any IRAs or Qualified Plan accounts you may have) if you wish to avoid the costs and hassles of FL probate for your family. If you really do not care that much how it works out for your family, I would not recommend Legal Zoom or any other self help or lower end legal service. Estate planning done well is a specialty and you should seek the services of a specialist if you really care about what happens after you are gone. Good luck.

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Posted

Mr. Morgan gave you a very good answer. The very short answer is that my advice to you would be NOT to try to do it yourself using Legal Zoom. I have seen documents done that way before. In some cases they might be better than nothing; in some other cases they aren't any better than nothing, and in some cases they are actually potentially worse than having nothing in place would have been. The fact that you asked the question of whether a "Living Will" would be better than a "Family Trust & Last Will & Testament" is evidence that you aren't an estate planning expert (a Living Will is a document which spells out your wishes regarding what medical treatments should or should not be provided to you if you are incapacitated and either in a terminal condition or a state of permanent unconciousness; it would not even come close to replacing a regular Will or a Will and revocable trust). Estate planning deals with complicated issues and takes effect mainly at a time when you are either deceased or incapacitated, and it is too late to fix the problems. Please do yourself and your family a favor and get the advice of an experienced estate planning attorney, who can help you figure out the best course of action for now and the future.

This answer is not intended to provide you with specific legal advice regarding your situation, or to create any attorney-client relationship. The intent is only to provide general information. You should be aware that you cannot rely on this answer to provide you with any protection against tax penalties. You should always consult your own attorney in order to obtain legal advice.

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Posted

I just want to add another admonition not to use LegalZoom or any self-help site. There is a new niche of law that is focused on fixing the problems created by LegalZoom and other sites, particularly for the issues you posed and the situation you're facing. Given the documents you currently have, your estate may contain complications that simply cannot be dealt with through LegalZoom. Also, 10 years is a long time to go without having your plan reviewed. I would go see a Georgia estate planning specialist as soon as possible and consider the changes recommended and then, once you move, go see a Florida estate planning specialist to see what changes should be made when you are subject to Florida law.

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Posted

You have four excellent answers.

Let me stress that Legal Zoom is one of the worst moves you can make. It's frankly dangerous, and many people regret later wasting their money on forms that didn't fit. The fact that you didn't know that a living will has nothing to do with wills (it deals with life support - which is important too) shows the real danger in forms withour legal training.

Trusts often overcomplicate things and very few people need them. Probate of a will is not always something that has to be complex, so if your reason was avoiding probate, see a lawyer as to whether that strategy makes sense.

Bear in mind that 10 year old documents from Florida will not be optimal here in Georgia, even if they are valid.

Also bear in mind that when you move to Florida, what was ideal here may not be ideal there, so in 2-3 years, see a lawyer again when you move.

If you find this answer helpful, please mark it here on AVVO as helpful. In answering you, I am attempting to communicate general legal information and am not representing you. Do feel free to call me at 404-768-3509 if you wish to discuss actual representation (the phone call also does not retain counsel; that requires an office visit and appropriate paperwork). In that a forum such as this provides me with limited details and doesn't allow me to review details and documents, it is possible that answers here, while meant to be helpful, may in some cases not be complete or accurate, and I highly recommend that you retain legal counsel rather than rely on the answers here. (You can also email my office at geaatl@msn.com . An email also does not retain my office, but can help you get an appointment set if you prefer not to call). Any information in this communication is for discussion purposes only, and is not offered as legal advice. There is no right to rely on the information contained in this communication and no attorney-client relationship is formed. Nothing in my answer should be considered as tax-advice. To ensure compliance with IRS Circular 230, any U.S. federal tax advice provided in this communication is not intended or written to be used, and it cannot be used by the recipient or any other taxpayer (i) for the purpose of avoiding tax penalties that may be imposed on the recipient or any other taxpayer, or (ii) in promoting, marketing or recommending to another party a partnership or other entity, investment plan, arrangement or other transaction addressed herein. I am also required to advise you, if your question concerns bankruptcy, that the U.S. Congress has designated Ashman Law Office as a debt relief agency that can help people file bankruptcy.

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