New Document Available To Denote Your Last Emotional Wishes

As a probate law firm in Florida, we speak to many clients who have just lost a loved one and were at a loss to know what their dying relative had wanted from them towards the end of their life. That’s why we developed My Last Emotional Wishes. This free document allows everyone—whether currently diagnosed with a life-limiting disease or just wanting to plan for the future—to record their end-of-life emotional desires, taking the guesswork away from struggling family and friends.

My Last Emotional WishesThe form, created in consultation with hospice professionals and other experts, allows you to write out such wishes as how you’d want to live if your time was limited; whether you’d want people to talk about your illness with you or mostly have their regular conversations; the people, items, music and/or prayers you’d want to be surrounded by in your final days; whether you’d want to be free of all pain near the end or wanting to tolerate discomfort if that means you can remain conscious; what you most want to be remembered for; where you’d ideally like to be when you pass on; the mood you’d prefer at your funeral/memorial service; and more.

My Last Emotional Wishes is offered free by the Law Office of Gary Landau, a probate and real-estate law firm located in South Florida. The four-page PDF form is easily downloadable from the firm’s website, GaryLandau.com (Scroll to the bottom of the page). After you fill out the form, let a loved one know you’ve created it, then store it alongside other important papers in your home (not in a bank vault, which can be hard for others to access in a crisis). Because this is not a legal form, but rather a reflection of your desires, there’s no need to have your signature witnessed or notarized.

“We created this form to help people provide emotional direction to their loved ones in the last stages of life,” says Gary Landau, the firm’s principal and an experienced probate attorney, who has watched struggling families wish they’d better known how to help their dying relative emotionally, and hopes to help others avoid this situation.

Because this form only deals with emotional issues, Landau cautions, it does not replace other legal documents everyone should have. This includes a Last Will and Testament, a Living Will (also called an Advanced Directive), and a Healthcare Proxy. (In some cases, a Financial Proxy is also desirable.)

If you know someone who might benefit from My Last Emotional Wishes, feel free to share this information.

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The Legal Documents You Should Create In the New Year

Legal Forms For The New YearNow that we’ve turned the page to 2017, it’s a good time to assess the legal documents you should have, and update or create the ones you are missing.  While this may not be as sexy or exciting as some other resolutions, it is very important for your family and your finances.

These are the legal documents to consider:

1) Last Will and Testament  

According to a recent online survey, the majority of Americans don’t have a will. This is a mistake for most people; should you unexpectedly pass away, the laws of the state, rather than your own wishes, will determine where your assets go. The new year is a good time to think about who you would want to have your possessions (and, crucially if you have minor children, who you would want to become their guardians) and create a valid will. Even if you have a will, you should dust it off every few years to be sure it still reflects your desires (and, if you’ve moved from a different state to Florida, that it conforms with Florida law). Updating an old but valid will can be done with an attachment known as a “codicil.”

2) Living Will

Most of us have ideas of what kind of treatment we want at the end of our lives, but often we don’t share that information until it’s too late. A living will (not to be confused with a will–see my Blog on the misconceptions) tells your physician whether you want aggressive end-of-life care or life support if you are unable to convey those wishes. Don’t think because you’re young you don’t need this; tragic accidents can happen to anyone.

3) Healthcare Power of Attorney

Doctors typically turn to a spouse or, if you’re not married, a living parent, to make important medical decisions should you become incapacitated. Allow you to have surgery? Go on certain powerful drugs? A healthcare power of attorney appoints the person you want for that role. You’ll want someone who keeps their cool under pressure, because important decision will fall to that person during a crisis.

4) Durable Power of Attorney

This document gives someone else the power to make major financial decisions for you, from paying your bills to, in some cases, selling  your home. Before 2011, attorneys could create a power of attorney that was “springing”–that is, that could be used only if you became incapacitated. Since then, however, powers of attorney are deemed to be in effect as soon as they are created. This is why it’s crucial that you choose someone you deeply trust. If you already have a medical condition that prevents you from managing your finances, create this document and give it to the person you are naming as agent so it can immediately be put into use. Another option, if you’re not quite ready, is to create the document but keep all copies under wraps until you want to give the agent your financial power.

Contact the Law Office of Gary M. Landau by email or call 954-979- 6566 to learn more about which documents you may need. Attorney Gary Landau personally returns all calls to him.

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Top Misconceptions of a Living Will

A “Living Will” is not the same thing as a Will. The latter directs where your stuff should go. The former tells your family and your doctor how aggressively they should care for you at the end of your life, such as whether you want to be put on life support. Here are some other misconceptions:

Misconceptions of a living will

Misconception: Living Wills are just for elderly people or those with terminal illnesses.

Actuality: It is never too early to create a Living Will. Hopefully you will be healthy for many years, but tragedy can strike anyone at any age. You don’t want to put your loved ones in the position of having to figure out what type of end-of-life care you would have wanted if you are unable to communicate this.

Misconception: A Living Will is the same as a Do Not Resuscitate (DNR).

Actuality: A Living Will outlines what type of medical treatment you would want in a life-threatening situation, including whether you want to withhold treatment if there is no hope you could regain a good quality of life. With a Living Will in hand, your doctor then creates a DNR order, which is the official document allowing the medical staff to withhold such treatment.

Misconception: If I have a Living Will, I don’t need to discuss my wishes with my family.

Actuality: It is extremely important that your immediate family knows about your desires for the end of your life. This is not a comfortable conversation to have, because no one wants to think about their loved ones leaving them. But it’s important that they know what you want, should something tragic occur. (You should also know what they want.) In addition to your family, it’s helpful to give a copy of your Living Will to your family physician.

A Living Will is often created at the same time as your regular Will and any other documents you may need to convey your wishes. Contact the Law Office of Gary M. Landau by email or call 954-979- 6566 to learn more about which documents you may need. Attorney Gary Landau personally returns all calls to him.

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Is It Necessary to Try to Avoid Probate?

Clients sometimes come to me hoping to set up their estate in a way that will avoid probate after their death. Occasionally, especially if they have limited assets, this can easily be done, such as by created a lady bird deed for a home that adds another person to the deed. Often, though, especially with more complex assets, this would typically involve creating  a revocable living trust. While there are some people who can benefit from doing this, usually people’s fears of probate are way overblown.

the pros and cons of avoiding probate

Here are the major concerns I typically hear and why you shouldn’t worry about them:

  1. Taxes. While there is a federal  estate tax on the books, it applies only to estates worth more than $5 million. If your assets don’t total that amount, your heirs will not pay taxes on what they inherit from you.
  2. Privacy. It is true that wills deposited with the court are public property while trusts don’t need to be filed. In theory, then, anyone can see who you have left your estate to. In reality, though, unless you are a famous person it’s unlikely anyone is going to bother trudging to the courthouse to peek at your file.
  3. Fees. There are costs involved with a probate–court costs, attorney fees, and the like. But setting up a revocable living trust also has fees attached to it, and they are much more than the cost of drafting a will.

Here are the biggest downsides to trying to avoid probate with a revocable living trust:

  1. Documentation. The original trust is not filed with the court, and so can easily be lost over the years. Without that document, proving a person is the successor trustee (and entitled to the deceased person’s assets) is impossible. I have had several clients over the years who swear they are the successor trustee, but since the original trust had been drafted decades earlier and no one could find it they were never able to locate it.
  2. Trust not properly “funded.” After creating the trust, and after each asset purchase thereafter, the trustee’s home, cars, bank accounts, stocks and other assets must be placed into the trust. So many times a trustee passes away and one or more assets is discovered to have remained in their own name. That asset can only be disposed of by–you guessed it–starting a probate.

This is not to say no one should create a revocable living trust. But in my experience most people should instead create a valid will (with an attorney, so there are no mistakes that can’t be corrected after you pass on) and not worry about their heirs needing to go through the process of probate.

For a FREE consultation about a probate or a will, contact the Law Office of Gary M. Landau by email or call 954-979-6566. Attorney Gary Landau personally returns all calls to him.

How To Contest A Will In The State of Florida

contesting-a-willWhile it’s hard to get a probate judge to overturn a will (or a portion of a will) in the state of Florida, it is possible. You have to provide enough evidence to prove your case, and you must launch a challenge before the probate proceeding is completed (in the first 3 months of being notified that the will has been filed; potentially longer if you were not legally notified).

Here are some reasons you and your lawyer might prevail:

    • The will wasn’t executed properly. This includes things like having an improper signature or not being witnessed by the required two people.
    • Lack of testamentary capacity. The court considers this to be different from general mental capacity. A person could be hallucinating for days but if they become lucid for an afternoon, as long as they understand what they are signing and to whom their possessions will be going, they can execute a will. This was reportedly the claim used years ago in the estate battle of the Doors’ Jim Morrison, when it was argued that the legendary singer was under the influence of narcotics when he wrote his will. (That will contest was ultimately settled out of court.)
    • Undue influence. I’ve had several adult children try to come to meetings with their parents and me when their folks  were deciding how to divide assets in their will. I always make the children leave. That way, there is no possible cause for a sibling who gets less or nothing to cry foul. To successfully mount a challenge this way, you have to prove that the influencer was involved in decisions regarding the will and that he or she benefits personally from the way it was drafted.
    • Fraud. Was the decedent tricked into signing the will? Or perhaps he was lied to in a way that caused him to make decision that would have been different absent the lie? Both are grounds for setting a will aside.

To prevent your own will from being successfully challenged, be sure it is drafted properly by a competent attorney. Although Florida law allows you to create a will on your own, I  have seen too many cases of do-it-yourself wills thrown out by the court.

If you need your will drafted or have questions about a current probate, contact the Law Office of Gary Landau by email, or call at 954-979-6566, for a FREE consultation. Attorney Gary Landau personally returns all calls to him.