Unpleasant But Necessary Topic: Are All Your Legal Documents in Order?

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By Gary M. Landau, Esq.

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Unpleasant But Necessary Topic: Are All Your Legal Documents in Order? | Coral Springs, FL | Call (954) 979-6566

The sadly high illness and death toll of the novel coronavirus have forced everyone, even young and healthy people, to think about their end-of-life legal documents.

Hopefully, you won’t need to use them for years. But in my experience, it is better to be overprepared than caught off guard without having all the legal documents you need.

Do you have a valid will that reflects your current desires? Do you have a living will that lays out whether you want to be kept alive mechanically if your brain function has ceased? And have you designated a healthcare surrogate?

If the answer to any of these questions is no, think about how you can get to yes.

The Three Important Documents Everyone Should Have

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. In addition to how you want your money and property distributed, a will also documents who should become the legal guardian of any minor children you may have.

If you have created a will in the past, take a few moments to read through it now to be sure it still reflects your desires. And if you moved from a different state to Florida after the will was created, you’ll need to check that it conforms with Florida law. (Updating an old but valid will can easily be done with an attachment known as a “codicil.”)

2-Living Will

Most of us have ideas of what kind of treatment we want—or don’t want—at the end of our life. A living will (not to be confused with a last will and testament, aka a will–see my prior blog on the misconceptions) tells your physician whether you want aggressive end-of-life care and life support if you are unable to convey those wishes. If you’d rather not remain on a breathing machine for months or years after your brain stops functioning, for example, a living will is a document where you express those wishes.

My firm also offers another document, which is not legally binding but helpful for people to consider about their end of life. Called My Last Emotional Wishes, this free downloadable 4-page form allows you to share how you want your final days with your loved ones to unfold. You can find the form at the bottom of the home page of our website.

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. But what if you’d prefer someone else? A healthcare power of attorney appoints the person you want to fill that role.

It’s important to select someone you know will carry out your wishes, which may conflict with the wishes of other relatives or friends. Someone who keeps their cool under pressure is of course ideal.

Why DIY Wills Are Never a Good Idea

Lately, there have been many ads on Facebook and other social media sites touting programs for you to make your own will. But I want to emphatically state that doing your own will is not a good idea, and I don’t say that simply because I am an attorney who drafts wills.

In too many instances I have been given wills to probate that were created by people on their own that turned out to have serious problems. Since those mistakes are rarely caught until the will is needed and the person is already deceased, the errors cannot be corrected. Instead, in some cases, the court has declared the will invalid.

As a longtime probate lawyer in South Florida, I’ve seen problems with who the deceased named as their personal representative since Florida law is very specific about who can and cannot serve in this position. Often people doing their own will don’t take into consideration assets not passed to heirs by a will, like a bank account already in one child’s name or a life insurance policy that names another.

Then there are typos, which are more common in DIY wills than you would think. An article in Forbes magazine documented some errors in homemade wills: Someone left “200.000” to his sister, inserting a period where there should have been a comma, which set off a battle among the family about how much she deserved. Another forgot to change the “insert name here” space-filler to an actual name, so no one knew who he meant to leave that money to.

Finally, the execution of a will must be perfect. Courts have and will toss those that aren’t, such as not having two witnesses who sign the will in one another’s presence.

Lawyers Are Essential Businesses, Working During This Time

For documents that are so important for your family and friends, will want to have a will, living will, and healthcare power of attorney that is drafted by a professional.

Fortunately, most law practices and the Florida courts are still operating during the coronavirus crisis. Many, like my own firm, are working from home to keep the staff as safe as possible. But all work is being completed as usual.

If you’d like to discuss your need for any or all of these crucial documents, I hope you’ll give our office a call.

Probate Attorney Coral Springs

Have the Law Office of Gary M. Landau by your side. The Law Office of Gary Landau is located in Coral Springs, Florida, and is rated 10 out of 10 by the legal website AVVO. For more information or free phone consultation for your probate and real estate legal matters, call 954-979-6566 or email us. Attorney Gary Landau personally returns all calls to him.

Law Office of Gary M. Landau P.A.
7401 Wiles Road, Suite 204
Coral Springs, FL 33067
954-979-6566

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Frequently Asked Questions

A will is the simplest way to ensure that your funds, property and personal things will be distributed after your death the way you want them to. Even if you have very few assets, you will benefit from having a will. About half of all Americans die without a will (known in legal terminology as dying intestate). Without a will to indicate your wishes, the court steps in and distributes your property according to state law. A will ensures that your assets will be given to family members or other beneficiaries you designate.

 

Having a will is doubly important if you have young children. One section of the will allows you to designate a guardian for them in the event of your death. Without a will, the court will appoint a guardian for your children, who may not be the person you desire.

Many Florida residents have out-of-state wills, drawn up while they were still living among the hills of North Carolina or the hubbub of New York. If the will was valid according to your old state’s laws at the time you made it, it is still legal in Florida. However, if you are a Florida resident, you may benefit greatly by having a new will drawn up in Florida, because it will likely be more easily admitted to probate.

 

It is important to know that each state has its own requirements for what makes a will a legally binding document. For example, Florida doesn’t recognize handwritten wills that haven’t been witnessed (known as “holographic wills”), or oral wills not put into writing, even if other states okay them. There’s also the matter of Florida estate law. In this state, for example, your surviving spouse is entitled to 30 percent of your net probate estate, regardless of what you say in your will. The spouse may also have a “Homestead” interest in property you share here, even if you want your house to go to someone else. In fact, all real property owned in Florida will be subject to this state’s laws, even if you’re a snowbird maintaining a residence in the state where your will was drawn up. Other peculiarities also exist, which is why a Florida will could make things much easier for your heirs.

 

If you would like to have me review your current out-of-state will, I am happy to do so without charge. If it turns out to be in accordance with Florida state laws and procedures, you can continue to rely on it. If not, however, your heirs would rather you discover that now.

It is a good idea to re-read your will every few years to be sure it reflects up-to-date realities (you may not want to leave your heirloom to a niece you are no longer speaking to, nor have someone be named your child’s guardian if they have taken seriously ill since you drafted your will). It is especially important to reexamine your will if:

 

  • You have gotten married since it was last drafted;
  • You have made bequests to people who have fallen out of your favor or are no longer living (I recently updated the will of a man who had left everything to his first wife, who was long deceased), or you have not included people who are now dear to you;
  • You would like to change the person named as the personal representative of the estate. (Note: Florida law does not allow a nonresident of the state to serve in this position, unless it is an immediate family member or certain other relatives);
  • You have acquired pricey or sentimental items that are not accounted for in your will. Do note, though, that Florida law allows you to attach a separate personal property memorandum to your will, detailing who will get which specific items. This list can be changed whenever you want.

Perhaps I should answer this question with where not to store it: in a bank’s safety deposit box. Although it may seem logical to put this with your other important papers, it is often difficult for your heirs to gain access to the box once you die, since the box is sealed then and must be opened in the presence of a bank employee.

 

One good option is to leave your original will with the attorney who drafted it, making copies for your personal representative and other important relatives and letting them know who has the original. For my clients who prefer that I store their original will, I keep it in a fireproof will vault in my office, or in the vault in my bank.

 

As an alternative, you could store the will in a fireproof box or vault in your own home.

 

Wherever you store it, be sure to let your personal representative and other close relatives know where you have put it!

Probate is when the court oversees your assets and liabilities after your death. During probate, the court makes sure that your will is valid and acceptable; that all debts, bills, creditor’s claims, and taxes are paid from your estate’s assets; and that your remaining assets are distributed to your beneficiaries according to your will (or, if no will exists, by Florida law).

 

Probate usually does take longer than most beneficiaries would like. But in order to ensure that everyone with a right to a claim is included in the process, the court requires several steps. If the size and complexity of your estate are minimal, however, the entire process of probate can take as little as a few months. Larger estates that are subject to IRS estate taxes or those involving litigation on the part of creditors or heirs generally take longer, often one or more years.

 

To speed the process along for simple and small estates, the courts allow a shortened form of probate, known as “summary administration,” which requires much less paperwork and time.

A personal representative (PR) is a friend or relative, or an attorney or bank, who is put in charge of the estate until all matters regarding the probate are resolved. (In other states, this person is sometimes called an executor or administrator.) The job of the PR includes identifying all assets, searching for creditors and paying valid claims, filing required estate tax returns if the estate is large enough (the figure escalates over time, according to Congressional laws), coordinating with the probate court and attorneys, and overseeing the distribution of assets–all done under the guidance and assistance of a qualified attorney.

 

Serving as a PR is an important role, and such a person should be selected with care as to who is most willing and best able to serve in this position. By Florida law, your personal representative must be over 18 years of age, and be a blood relative, your spouse, the parent or child of your spouse, or a Florida resident.

Generally, no. If you co-own all property via such legal structures as “tenancy by the entirety” or by “joint tenancy with right of survivorship” the property immediately passed to you upon your spouse’s death. Proof of death is usually all that is needed to pass such jointly owned title for cars, stocks, and other personal property to the surviving spouse.

 

But if even one asset was held solely in the deceased person’s name, or any property is owned in the form of a “tenancy in common,” that estate will be required to go through probate. If the assets are limited, the shorter, simpler form of probate is generally all that is required.
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