1. A WILL

    WHAT IS A WILL?

    A will is a writing, signed by the decedent and witnesses, that meets the requirements of Florida law. In his or her will, the decedent can name the beneficiaries whom the decedent wants to receive the decedent’s probate assets. The decedent can also designate a personal representative (Florida’s term for an executor) of his or her own choosing to administer the probate estate.

    If the decedent’s will disposes of all of the decedent’s probate assets and designates a personal representative, the will controls over the default provisions of Florida law. If the decedent did not have a valid will, or if the will fails in some respect, the identities of the persons who will receive the decedent’s probate assets, and who will be selected as the personal representative of the decedent’s probate estate, will be as provided by Florida law.

    WHAT IF THERE IS NO WILL?

    If someone dies without a valid will, he or she is “intestate.” Even if the decedent dies intestate, his or her probate assets are almost never turned over to the State of Florida. The state will take the decedent’s assets only if the decedent had no heirs. The decedent’s “heirs” are the persons who are related to the decedent and described in the Florida statute governing distribution of the decedent’s probate assets if he or she died intestate.

    If the decedent died intestate, the decedent’s probate assets will be distributed to the decedent’s heirs in the following order of priority:

    If the decedent was survived by his or her spouse but left no living descendants, the surviving spouse receives all of the decedent’s probate estate. A “descendant” is a person in any generational level down the descending line from the decedent and includes children, grandchildren, and more remote descendants.

    If the decedent was survived by his or her spouse and left one or more living descendants (all of whom are the descendants of both the decedent and his or her spouse), and the surviving spouse has no additional living descendants (who are not a descendant of the decedent), the surviving spouse receives all of the decedent’s probate estate.

    If the decedent was survived by his or her spouse and left one or more living descendants (all of whom are the descendants of both the decedent and his or her spouse), but the surviving spouse has additional living descendants (at least one of whom is not also a descendant of the decedent), the surviving spouse receives one-half of the probate estate, and the decedent’s descendants share the remaining half.

    If the decedent was not married at his or her death but was survived by one or more descendants, those descendants will receive all of the decedent’s probate estate. If there is more than one descendant, the decedent’s probate estate will be divided among them in the manner prescribed by Florida law. The division will occur at the generational level of the decedent’s children. So, for example, if one of the decedent’s children did not survive the decedent, and if the deceased child was survived by his or her own descendants, the share of the decedent’s estate which would have been distributed to the deceased child will instead be distributed among the descendants of the decedent’s deceased child.

    If the decedent was not married at his or her death and had no living descendants, the decedent’s probate estate will pass to the decedent's surviving parents, if they are living, otherwise to the decedent's brothers and sisters.

    Florida’s intestate laws will pass the decedent’s probate estate to other, more remote heirs if the decedent is not survived by any of the close relatives described above.

    The distribution of the decedent’s probate estate under Florida’s intestate laws, as discussed above, is subject to certain exceptions for homestead property, exempt personal property, and a statutory allowance to the surviving spouse and any descendants or ascendants whom the decedent supported. Assets subject to these exceptions will pass in a manner different from that described in the intestate laws. For example, if the decedent’s homestead property was titled in the decedent's name alone, and if the decedent was survived by a spouse and descendants, the surviving spouse will have the use of the homestead property for his or her lifetime only (or a life estate), with the decedent’s descendants to receive the decedents’ homestead property only after the surviving spouse dies. The surviving spouse also, however, has the right to make a special election within 6 months of the decedent’s death to receive an undivided one-half interest in the homestead property in lieu of the life estate provided certain procedures are timely followed. The spouse’s right to homestead property does not take into consideration whether the surviving spouse has one or more living descendants who are not also a descendant of the decedent.

  2. POWER OF ATTORNEY

    WHAT IS A POWER OF ATTORNEY?

    A Power of Attorney is a legal document delegating authority from one person to another. In the document, the maker of the Power of Attorney (the “principal”) grants the right to act on the maker’s behalf to an agent. What authority is granted depends on the specific language of the Power of Attorney. A person giving a Power of Attorney may make it very broad or may limit it to certain specific acts.

    WHAT ARE SOME USES OF A POWER OF ATTORNEY?

    A Power of Attorney may be used to give another the right to sell a car, home or other property. A Power of Attorney might be used to allow another to access bank accounts, sign a contract, make health care decisions, handle financial transactions or sign legal documents for the principal. A Power of Attorney may give others the right to do almost any legal act that the maker of the Power of Attorney could do, including the ability to create trusts and make gifts.

  3. LIVING WILL

    WHAT IS A LVING WILL?

    A living will is a legal document where you state how you wish to be treated if you are in an irrecoverable state such as if you are being kept alive only through artificial means, tubes and such.  You have the right to tell the doctors and your loved ones whether you want all herculean methods used to keep you alive in the hope of your recovery or to let you go, in dignity with the use of medications for pain relief and water or food.

    This is perhaps the greatest gift you can give your family so they do not have to make this difficult decision on your behalf.  A copy of the living will is  attached hereto for you to download and effectuate on your behalf.

  4. HEALTH CARE SURROGATE

    A Health Car surrogate is someone you appoint to oversee your medical situation if you are unable to make those decisions. If you are unable to speak or to make healthcare decisions, you may need someone who can talk to the doctors and medical providers on your behalf and make the decisions you need to be made: should you have surgery, should you have a transfusion, should you be transferred to hospice, should you go to a new healthcare facility, nothing be done? Only someone you trust should be appointed to this position and you should discuss your opinions with that person before something happens.

  5. PRE-NEED GUARDIAN
    If you are unable to make any decisions and do not have a power of attorney, you may need a guardian appointed to be able to make decisions on your behalf. Who is that person? Who do you trust to make the decisions that are best for you? Who do you know, friend, family, caregiver, or someone who you know will make the best decisions for you and has no interest in your estate?    A pre-need guardian is someone you have chosen before the need for a guardianship actually presents itself.  This is sort of like pre-wrapping a gift. It isn’t yet time to give it away, but it’s in the works.  Call the Law Firm of Judith B. Paul to let us help you make that decision.

  6. TRUSTS, REVOCABLE
    WHAT IS A REVOCABLE TRUST?

    A revocable trust is a document (the “trust agreement”) created by you to manage your assets during your lifetime and distribute the remaining assets after your death. The person who creates a trust is called the “grantor” or “settlor.” The person responsible for the management of the trust assets is the “trustee.” You can serve as trustee, or you may appoint another person, bank or trust company to serve as your trustee. The trust is “revocable” since you may modify or terminate the trust during your lifetime, as long as you are not incapacitated.

    During your lifetime the trustee invests and manages the trust property. Most trust agreements allow the grantor to withdraw money or assets from the trust at any time, and in any amount. If you become incapacitated, the trustee is authorized to continue to manage your trust assets, pay your bills, and make investment decisions. This may avoid the need for a court-appointed guardian of your property. This is one of the advantages of a revocable trust.

    Upon your death, the trustee (or your successor if you were the initial trustee) is responsible for paying all claims and taxes, and then distributing the assets to your beneficiaries as described in the trust agreement. The trustee’s responsibilities at your death are discussed below.

    Your assets, such as bank accounts, real estate and investments, must be formally transferred to the trust before your death to get the maximum benefit from the trust. This process is called “funding” the trust and requires changing the ownership of the assets to the trust. Assets that are not properly transferred to the trust may be subject to probate. However, certain assets should not be transferred to a trust because income tax problems may result. You should consult with your attorney, tax advisor and investment advisor to determine if your assets are appropriate for trust ownership.

    IRREVOCABLE

    An irrevocable trust is a trust where you have deposited your assets and over which which you have relinquished control.  You have nominated a Trustee to oversee the trust, you have changed the ownership of the assets to the name of the Trust and have given control of the assets to someone else. This can be frightful for some people!

    Most of us work hard for our money and property. We don’t want to give up control over these things since we earned them, we own them and we feel we should control them, but what happens when we can no longer control the assets? What happens when we need to apply for government benefits and ownership of all our property makes us ineligible for public benefits, but we don’t have enough set by to provide for the long haul?  We find we can no longer own all our property and assets and are forced to turn control and ownership of these over to someone else, maybe to a charity, to a family member, to a bank or other organization. What happens then? Call the Law Office of Judith B. Paul for assistance with planning for Medicaid or Veteran’s Aid and Attendance Benefits.