Florida Estate Planning and Probate Law Blog focused on recent case law and planning ideas.

DELAWARE REPEALS ITS ESTATE TAX EFFECTIVE JAN. 1, 2018

Effective January 1, 2018, Delaware residents will no longer be subject to a state estate tax. Delaware becomes one of the thirty-three (33) states that do not impose either estate or inheritance taxes or both. The repeal is the result of Democratic Governor John Carney Jr. signing a stand-alone estate tax repeal bill. One estate lawyer commented “[t]he very wealthy don’t have to move down to Florida.” The Governor and legislature recognized that that if wealthy folks stay in Delaware, instead of changing their residency to avoid the state estate tax, the state will generate more revenue from personal income tax than estate taxes (high of $16.2 million in 2011, and a low of $1.3 million in 2014).

ESSENTIAL ESTATE PLANNING DOCUMENTS

Regardless of your state of residency it is important to have your estate planning documents in order. The following is a list of essential documents and how they will benefit you. Last Will & Testament: a legal document in which you express your wishes as to how your estate (assets, accounts, real estate, etc.) is to be distributed at your death, and nominates the individual(s) or entity to manage the estate until its final distribution. Without this document the state statutes will control who administers your estate and to whom does it pass. ​ Power of Attorney: a written document in which you give another individual (they can reside anywhere) the power to act in your place in managing your assets, pay bills, handle insurance claims, sell real estate, file a tax return, to make gifts, create revocable trusts, invest assets and do anything you can do with your assets personally. You may name one or more agents under a power of attorney, and direct that one may act alone without the other, or that they must act jointly. You can also appoint a successor agent to act in the event the first person(s) you’ve named cannot act. A “durable” power of attorney does not become inoperative upon your incapacity. However, upon your death it is no longer effective. Health Care Surrogate Directive:​ a written instrument in which you appoint someone or multiple individuals you trust to make decisions about your medical treatment in the event you are unable to give instructions at the time the decisions must be made (ex., you are in a coma). Living Will: a document in which you state your wishes regarding medical treatment if you are unable to give instructions at the time the decisions for medical treatment need to be made. The living will can include instructions about the termination of life support and artificial nutrition and hydration (i.e., food & water intravenously). Pre-Need Guardian Declaration: a document that specifically nominates the individual(s) to serve on your behalf if it is necessary to appoint a guardian for you. A Florida Court must consider the individual(s) nominated if he/she is capable of serving. ​Without a power of attorney and health care surrogate in place your family will have to commence guardianship proceedings (petition the court to step in on your behalf) to make these decisions on your behalf. Guardianship proceedings is a very public process and makes the world aware that your family thinks you can’t take care of your own finances or medical decisions.