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An Overview of Estate Planning: An Interview with J. Michael Hamby and Ashley B. Rogers of Chesser & Barr P.A.

By J. Michael Hamby & Ashley B. Rogers

Tell us a little bit about your company and its foundation.

Chesser & Barr, P.A. is a private law firm that has served the citizens of northwest Florida and beyond for over 35 years. Our law firm provides legal services in estate planning and probate, real estate and development, condominium and community association law, civil litigation and appeals, business law, business bankruptcy, commercial collections, municipality and government law, and personal injury.

Founding members Mike Chesser and Harry Barr are board-certified specialists in real estate law and civil trial law, respectively. Our team of attorneys holds licenses to practice in state and federal courts in Florida, Georgia, Alabama, and Mississippi.

What are some of the services your company provides?

We offer a full range of services to people and businesses. Our estate planning and probate attorney is J. Michael Hamby, LL.M. He assists our clients with probate, fiduciary litigation, and estate planning, which includes trusts, wills, living wills, health care surrogate designations, and guardianship. Holding a Master of Laws in Taxation, Mr. Hamby is uniquely equipped to assist clients with matters involving tax law, asset protection, and business law. Additionally, he has a keen understanding for the particular needs of physicians, medical practices, and small business owners.

Can you briefly state for our readers a generalized definition of estate planning?

Comprehensive estate planning is the process by which an individual or family arranges for the transfer of assets in anticipation of death and the process where that individual prepares for a possible time during an individual's life when he or she cannot make decisions for themselves. Additionally, comprehensive estate planning involves creating a plan on how best to care for a minor child and possibly creating a plan for the care of an aging family member when the primary caregiver is no longer able. Finally, comprehensive estate planning addresses tax and asset protection concerns.

In other words, comprehensive estate planning is not just for the wealthy. Almost all of us need comprehensive estate planning.

At what age should you start planning your estate details? Why is it important to have your estate in order at this age?

It is a good idea to begin the process of estate planning when one reaches the age of eighteen (age of majority), but estate planning really becomes increasingly important when one starts to acquire assets or gets married. More than age, one's circumstances dictate the importance of estate planning at any given time. Additionally, a good estate plan is not a "set it and forget it" proposition. Our needs and responsibilities change as we get older, so a good estate plan should be revaluated every three years, after a major life event (i.e., marriage, death, and birth of a child), or after a change in the tax laws.

What sorts of issues do estate lawyers deal with?

Helping people understand the complexity of their situation and helping them craft a plan that will allow for the orderly distribution of their assets at death at the least expense to their estate and receive the most favorable tax treatment.

At death, our assets are distributed in a variety of ways. For instance, a decedent's will can distribute all the assets owned by the decedent that are titled in the decedent's name, but property owned jointly with rights of survivorship will pass outside of the will to a joint owner, if a joint owner survives the decedent. Likewise, a retirement account, insurance policy, and possibly a bank account will pass to the person(s) named as the beneficiary and not by the will. With the variety of ways assets can be distributed at death, it is very common that unequal distributions may occur which may cause family strife.

Additionally, helping people understand that avoiding probate is not necessarily a good goal. However, this is dependent on an individual's circumstances. More often than not, it is advantageous for an individual's estate to go through the probate process. With proper estate planning, the probate process can be relatively painless.

What can be expected from a basic estate contract plan?

A basic estate plan will likely include a will, durable power of attorney, health care surrogate designation, living will, protected medical information release, and possibly a preneed guardian designation. But just as important as the documents previously mentioned, a basic estate plan includes a legal explanation of how the documents work and how to avoid common mistakes.

A more complicated plan will include the same documents mentioned above but may also include a living trust or testamentary trust.

How is estate planning different from the creation of a will?

Anyone can create a will, but estate planning is the tailoring of the will to meet the individual's unique circumstances and the inclusion of provisions that can save the individual's estate from unnecessary expenses during probate. Moreover, estate planning is the process of planning for the possible lack of capacity to make decisions for ourselves as we age, the care of a minor child or aging parent, and the process of tailoring a plan to accomplish the most favorable tax treatment and provide asset protection.

How do estate planning laws vary from state to state?

If a Florida resident owns Florida homestead in their individual name, he or she cannot devise the homestead property if that individual is survived by a spouse or minor child, except the individual can devise the property to the surviving spouse in such a situation. A devise to any other beneficiary in such a situation will fail and the spouse will either (i) take a life estate in the property with the children taking a remainder interest or (ii) take an undivided half interest in the property with the children taking an equal share of the remaining half. As far as I know, no other state has such a devise and descent restriction.

Another example of the differences between states involves the execution of a will. In both Florida and Alabama, a will has to be signed by the testator and two witnesses, but in Florida, the witnesses must sign the will in the presence of the testator and in the presence of each other or the will is not valid. A subtle difference, but when the validity of a will is at stake, it can be an expensive issue if the will were subject to a later challenge.

Nevertheless, if an individual properly executed a will in one state and then moved to another state, the new resident state will respect the foreign will.

What is the best way for people to reach you or your company?

We prefer to connect in person or by telephone when developing a new client relationship. We are able to consult with clients from both of our offices located in Okaloosa County, Florida.

Shalimar Office:
1201 Eglin Parkway, Shalimar, FL 32579
(850) 651-9944 telephone
Crestview Office:
398 North Main Street, Suite B, Crestview, FL 32536
(850) 683-9945 telephone

Upon establishing the attorney-client relationship, we welcome communication via email. You can learn more about our firm by visiting www.chesserbarr.com.

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