July 19, 2010

What Will Happen to Your Animals?

Posted by Lesly under Florida Pet Trust, Florida Wills & Trusts, Trusts, Wills | Tags: , , , , , , , , |
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What will happen to your pets if you die or become disabled or ill?

I love my pets. They are members of my family.  I know many others that feel the same way and want to make sure that their four-legged, feathered, or finned friends are cared for in their absence.

Pets are considered personal property under the law.  If pets are not mentioned in a will, they pass to your heirs in the same way as any other personal property.  Your family may have no choice but to bring fluffy to a shelter, leaving your treasured pet homeless or worse yet, euthanized.

Proper planning can ensure that your furry family members are cared for in your absence.  Identify and appoint someone to care for your animals.  Speak to the person you choose to make sure that they will step up and handle any special needs your pets may have.  Refer to your pets generally and not by name, so you don’t have to update the will when you get a new animal.  Consider setting aside money for the care of your pets, especially if they have special needs.

Florida law allows you to create a trust for the care of an animal, which terminates upon the death of the animal.  One can name a person to oversee a pet’s new owners and any funds set aside for the care of the pet.

Florida Statutes  736.0408, Trust for care of an animal (2009):

(1)  A trust may be created to provide for the care of an animal alive during the settlor’s lifetime. The trust terminates on the death of the animal or, if the trust was created to provide for the care of more than one animal alive during the settlor’s lifetime, on the death of the last surviving animal.

(2)  A trust authorized by this section may be enforced by a person appointed in the terms of the trust or, if no person is appointed, by a person appointed by the court. A person having an interest in the welfare of the animal may request the court to appoint a person to enforce the trust or to remove a person appointed.

(3)  Property of a trust authorized by this section may be applied only to the intended use of the property, except to the extent the court determines that the value of the trust property exceeds the amount required for the intended use. Except as otherwise provided in the terms of the trust, property not required for the intended use must be distributed to the settlor, if then living, otherwise as part of the settlor’s estate

You can also specify other ways you want your pets to be included in your will.  Every will I create has a section on burial or funeral arrangements.  In that section, one may direct the personal representative to have the ashes of a deceased pet be buried with the owner or spread in a particular place.

If you have any specific questions, please contact me.

Lesly C. Longa is an attorney helping Floridians with estate planning and civil litigation.  She has a JD from Boston University and is licensed to practice law in three states.  Please note that the information provided here is not legal advice and does not create an attorney-client relationship.  For legal advice, consult with an attorney.

 

June 23, 2010

How to Change or Revoke a Florida Will

Posted by Lesly under Florida Estate Planning Attorney, Florida Wills & Trusts | Tags: , , , , , , , , , |
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Under Florida law, a Last Will & Testament can be changed, but this must be done correctly or the court will not uphold the validity of your will.  Never make changes by hand or simply cross out items.  The only way to properly make changes to an existing will is to execute a codicil to the will.  A codicil is an amendment that attaches to the will.  Your other option is to revoke the entire will and start over.   

According to the Florida Statutes, the revocation of a will can occur in three ways: revocation by writing, revocation by physical act, and revocation by operation of law.  So if you want to revoke a will, destroy it and any copies, or make a new one that revokes all earlier wills.  Then in your new will you can be sure to add your burial and funeral arrangements, include new family members, or makes any other changes you would like.  Wills are dated when executed, so there will be no question about which came first.  For further reference, see Florida Statutes Section 732.505 on revocation by writing.  If you live in Florida, contact a Florida estate planning attorney for help with preparing a codicil or a new will.

 

November 19, 2009

Florida Probate Basics

Posted by Lesly under Elder Law, Estate Planning, Florida Estate Planning Attorney, Probate, Wills | Tags: , , , , , , |
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Probate Basics Under Florida Law

Probate is a title proceeding required to transfer assets.  The probate process is also known as an estate administration.  A deceased person’s probate estate consists of assets held by the person in his or her name alone, or held with another as a tenant in common, or payable to the deceased person’s estate upon death.  If there are no assets for probate, then there is  no probate estate and probate is “avoided.”  But, even though a probate may not be needed to transfer assets, it may be needed for other purposes. See Fla. Probate Rule 5.210.

A will does not avoid probate.  If a person left a will, it needs to be filed in the probate court with jurisdiction over the county in which the deceased person lived at the time of death.  In Florida, probate court is a division of the circuit court.  The will should be filed with the court within ten days. 

If a person dies without a will, a petition must be filed with the court to have the deceased person’s property distributed according to the state’s laws.  These proceedings are known as “intestacy proceedings.”  During the proceedings, the judge will appoint a personal representative to supervise the distribution of the property. 

A personal representative is an individual or entity that gathers all the probate assets and administers the estate according to statutory law, court direction, and/or instructions contained in the will.  The personal representative usually must hire an attorney to help in the estate administration.  The entire probate process can take anywhere from six months to a year, or longer for larger, complicated estates.

Additional Information/Resources:

 

November 5, 2009

How to Protect Your Partner: Advice for Unmarried Couples

Posted by Lesly under Florida Estate Planning Attorney, Living Will, Love, Power of Attorney, Unmarried Couples, Wills | Tags: , , , , , , , , , , , |
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Unmarried couples do not have the same legal rights as married couples. 

Unmarried couples must create essential documents to ensure that their partner is treated with the respect he or she deserves.

A growing number of heterosexual couples have chosen not to enter into marriage for their own personal reasons.  According to the U.S. Census Bureau, the number of unwed couples has jumped 72% to roughly 5.5 million households from 1990 through 2000.  Marriage-free couples feel they can have whole and complete relationships without marriage, but the government does not extend legal protections to unmarried couples.  The Florida intestacy laws do not grant any rights to a  share of an estate to a surviving unmarried partner. 

In addition, most states deny same-sex couples the right to marry.  Same-sex marriages or unions may not be recognized in other states.  This is an important consideration for a couple moving to another state that does not recognize same-sex unions.  The Florida Constitution, for instance, defines marriage as a union between a man and a woman, preventing same-sex couples from having the right to marry.  Florida will not recognize same-sex unions even if they are valid in other states. 

All unmarried couples suffer marital status discrimination, and must take action on their own to ensure that they have similar legal rights to married couples. 

Regardless of whether they are gay or straight, unmarried couples should specify their choices regarding medical and financial decisions by using the following documents:

  • Will
  • Living Will and Advanced Health Care Directive
  • Durable Power of Attorney
  • Domestic Partnership Agreement (similar to a pre- or post-nuptial agreement)
  • Have an attorney review how you hold title to your home and other real estate
 

October 15, 2009

Celebrity Deaths: An Estate Plan Wake-up Call

Posted by Lesly under Elder Law, Estate Planning, Family Financial Planning, Money, Probate, Trusts, Wills | Tags: , , , , , , , , , |
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Here is an article from Pennsylvania Estate Planning and Taxation Attorney, Steven J. Fromm:  

Michael Jackson & Farrah Fawcett: Estate Plan Wake Up Call

 

October 14, 2009

The Top 10 Worst Excuses for Not Having a Will

Posted by Lesly under Elder Law, Estate Planning, Family Financial Planning, Money, Probate, Wills | Tags: , , , , , , , , , , , , |
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There is no excuse for not having a will.  Here are the top 10 excuses and the reasons why you need to write a Last Will and Testament!

     Excuse # 1 – I am so young, I don’t even need a will.  Death is a certainty for everyone.  The only thing we don’t know is when it’s coming.  Unless you have a will, state law will determine how everything you own is devised.  Your will is your way of saying who gets what you own.  Unless you do not own anything at all or are under 18, you need a will.  Now look around and think about who you want to get your stuff.

     Excuse # 2 – I don’t have time.  As someone wiser than me once said, you can sleep when you’re dead.  But, you can’t write a will when you’re dead.

     Excuse # 3 – I don’t own enough. If you own anything, you should decide for yourself who gets it.  Your earthly goods may have little monetary value, but they may have sentimental value.  To prevent family feuds, provide detailed instructions about who gets what personal property and update it often.

     Excuse # 4 – I’m single and don’t have any kids.  If you have no kids or spouse, Florida law dictates that your estate will go to your blood relatives in a particular order (see Florida Statutes 732.103).  Your friends or domestic partner will be left out unless you write a will.   

     Excuse # 5 – I have kids, but my mother will take them if I die.  Without a will, a Judge will decide who raises you kids and controls their inheritance.  All parents need to use a will to choose guardians for their children.  Parents may also appoint one person to care for the children and another person to be in charge of their money.

     Excuse # 6 - My family will know how to distribute my belongings.  Your family does not get first call.  The state does.  If you count your friends, including partners or boy/girlfriend, as family, you definitely need to get a will or they will not be left a single thing by the state.  Not having a will may end up making things more difficult for the family, friends and loved ones you left behind.    

     Excuse # 7 – I own my house jointly with my spouse or a co-owner.  The property you own in joint tenancy or a tenancy by the entirety will pass to your spouse or co-owner.  You likely still have other assets that are titled only in your name or other stuff you want to go to specific people.  Also, use of joint ownership may cause an increase in estate taxes over the joint lives of the married persons, force double probates if you and your spouse die at the same time, raise exposure during life to the debts of the other owner, and cause other hassles about estate taxes.

     Excuse # 8 – I do not need a will because I have life insurance.  Life insurance provides money to the person named as the beneficiary in the policy.  A will is still necessary to dispose of other assets that a person owns at death and name those persons that will inherit those assets.   

     Excuse # 9 – I don’t want to increase probate expenses.  Having a will does not increase probate expenses.  If anything, having a will reduces probate expense.  Even if you have no will, your heirs will still have to go to court to administer your estate.  The procedure for administering an estate is often more expensive than administering a will.  A properly drawn will names the beneficiaries and delineates procedures to simplify the administration process.  Not having a will likely makes this process take longer and cost more. 

     Excuse #10 – I cannot afford to write a will.  Contrary to popular belief, it doesn’t cost much to write a will.  It is certainly not a pleasant thing to think about.  Why not delegate it to a qualified professional?  Many attorneys offer reasonable, flat fees and free consultations.  There is plenty of competition, so if you don’t like one attorney, consult with another one.  Attorneys will ensure that your will is properly executed and will alert you to issues you may not have thought of before (like taxes or health care directives, for example). 

Contact me or share your comments below.

Thinking about making your own will?  Before writing your own will using some do-it-yourself will form kit, read my blog post on the subject, which was featured by The Consumerist, a leading online resource for consumer-driven advice.  Will Form Kits v. Attorney:  Is it worth the money to have an attorney write your will?

 

October 13, 2009

Obtaining a Copy of a Will & Understanding the Process

Posted by Lesly under Estate Planning, Family, Florida Estate Planning Blog, Probate, Wills | Tags: , , , , , , , , , |
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I have received several questions about how one processes or obtains a copy of a will, especially when there are doubts as to its validity.   Here is a recent one.

Question:  My dad passed away here in Florida where he lived, but someone coming in for the funeral from Texas says he has my dad’s will in a safe deposit box, and that he will tell everyone what they will get when he gets here.  Is that legal?  Is there some kind of process we need to go through to make sure that’s what my dad wanted? 

Answer:  There is a formal process for this under Florida law.  This is known as Probate.  Your father must have created a valid Will.  Otherwise, his estate will pass according to state law.  Your father’s friend from Texas should file the Will with the Clerk of the Circuit Court in the county where your father lived.  The Texan can show you the Will if he wants, but that is not required.  If he doesn’t show you the Will, you can obtain a copy of it from the court after it is filed.  A Judge will rule on the validity of the Will, and you can contest it under certain circumstances.  If the person with possession of the Will does not file it within a reasonable amount of time (10 days), you can file an action with the court requiring him to do so and have him pay your attorney’s fees and costs as well.  You can also have a Florida attorney send him a letter demanding that he comply with the law before filing in court.  Please feel free to contact me for assistance.

 

October 7, 2009

Living Wills: Yes You Can Do It Yourself

Posted by Lesly under Elder Law, Estate Planning, Florida Wills & Trusts, Wills | Tags: , , , , , , , , |
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Will

I recently received the following question: Is your living will protected from creditors?

A Living Will is not the same as a Legal Will. A Legal Will disposes of personal property after death and appoints a personal representative.  A Living Will provides instructions regarding future health care and end-of life scenarios.  A Living Will has nothing to do with your property or claims from creditors.

Under Florida law, every competent adult has the right to make decisions about his or her own health, including the right to advise the doctor to withhold or withdraw life-sustaining equipment (“pulling the plug”).  The Florida Legislature has provided a suggested form to do this within Florida Statutes §765.303.  The free Living Will form is also available from the Florida Bar’s website.  You should sign a Living Will in front of two witnesses, at least one of which should not be related to you by blood or marriage.  Once you have created a Living Will, provide a copy to your treating physician or hospital.  Keep another copy in a safe place.

You may also choose a Health Care Surrogate to make all health care decisions on your behalf in the event you become unable to do so.  If you have no Living Will, but you have executed a valid Health Care Surrogate designation, the surrogate can make decisions on your behalf should you become incapacitated.

If you need legal assistance to create these documents, please do not hesitate to contact me, a Florida Estate Planning Attorney.  I include a free Living Will and Health Care Surrogate designation with any Will or Estate Planning Package created by my office.

 

October 1, 2009

DIY Will Form Kits v. Attorney: Is it worth the money to have an attorney write your will?

Posted by Lesly under Consumer Advocacy, Estate Planning, Family Financial Planning, Florida Estate Planning Blog, Love, Probate, Tampa Wills & Trusts Attorney, Trusts, Wills | Tags: , , , , , , , , , |
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You can choose from many “do-it-yourself” last will and testament form kits.  So, is it worth the money to pay an attorney to write your will for you?  Well, an attorney may be less expensive in the end. 

In their consumer pamphlet on wills, the Florida Bar states, “No sensible person would employ ‘just anyone’ to fill teeth, take out an appendix, or deliver a baby.”[1]  So why do the same for your important legal documents?  If you really are trying to protect the financial security of your loved ones, don’t you think it is worth the money to consult with a professional?  For those that do not agree, their heirs will probably have to spend a fortune on lawyer fees to sort out the mess after their passing. 

A Will can be contested if it was not properly drafted, signed, or witnessed in accordance with the applicable state laws.  Laws regarding Wills and the administration of estates vary by state.  So Florida law is different from, say, California law.  For instance, in Florida we have real property law, such as Homestead, which takes precedent over estate planning tools.  What state laws, if any, were used or considered when your DIY Will was drafted?  Who knows.

While you may find a kit that claims to have forms for Florida, buyers beware:  every kit will make you acknowledge that it does not guarantee that it is able to do what it promises to do.  That’s right, it may not provide you an enforceable last will or trust.  Sadly, the warnings pop up at you after you buy the software, but most of us do not read them.   

When you accept the terms, you are likely agreeing that you understand that the software you bought to create important legal documents may not achieve the purpose you intend and does not offer legal advice.  In fact, it makes clear that it does not provide you any value.  It is as good as a blank piece of paper.  Just read it for yourself.  Take, for instance, Findlaw Forms’ Conditions of Use, which warn users that, “We do not provide any express or implied warranties of merchantability, suitability or completeness for any of the products or services for your particular needs.  The products and services are used at your own risk.” 

Suze Orman, who offers financial planning advice on TV, sells a Will & Trust Kit as well.  Her Terms and Conditions similarly state in relevant part: 

TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, SUZEORMAN.COM HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.  SUZEORMAN.COM DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE MATERIALS IN THIS WEBSITE IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.

She wears snazzy jackets and has plenty of spunk, but that does not make her qualified to offer legal advice.  For all Suze (or her company) knows, your designated beneficiaries may not get what you think they will because she can’t guarantee that the forms are fit or reliable for any use, let alone use as a Last Will or a Trust!  Lawyers provide legal advice and are liable for their professional negligence.  Lawyers guarantee you they will use their best professional skill.  Moreover, many lawyers charge affordable fees.

Ultimately, when you use one of these form kits, you are taking a huge gamble on your family’s financial security because your documents may not be legally enforceable.  People with very limited funds and a modest estate may still find that one of these kits is worth the uncertainty.  If you really put family first and you have any money or property to leave them, there is no way you should rely on a do-it-yourself form instead of seeking the assistance of counsel.  Contact an attorney in your state.  A Florida estate-planning attorney can help you with this process, answer your questions, and help you plan for your family’s financial security. 

Thank you to The Consumerist, a national consumer advocacy website, for featuring this article!

Please do not hesitate to contact me with any questions, or post your comments below!

[1]Consumer Pamphlet: Wills Trusts & Estates, The Florida Bar, available at:  <http://www.floridabar.org/tfb/TFBConsum.nsf/48e76203493b82ad852567090070c9b9/a0091ab18d4875d085256b2f006c5b75?OpenDocument>

 

September 30, 2009

Florida Probate Courts Go Electronic

Posted by Lesly under Estate Planning, Florida Estate Planning Attorney, Florida Estate Planning Blog, Money, Probate, Tampa Bay Probate Attorney, Tampa Wills & Trusts | Tags: , , , |
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Florida Probate courts will be the first to implement a new legislatively mandated electronic filing (e-filing) system.  The court clerks will begin implementing the e-filing system tomorrow, October 1st.  While the new system may not be up and running in every county starting on October 1st, a Probate e-filing Work Group will work out the complexities of the new system.  Two Florida counties, Broward and Pasco, have already implemented electronic filing for probate issues.  The new system will save time, paper and money.  It will allow probate attorneys to use the same system to file in any county in the state.  A Florida Estate Planning and Probate Lawyer can assist you in filing probate in Florida.

 

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