Wills Lawyer in Miami
Estate Planning includes issues that may arise during life (Inter Vivos) as well as post-death (Testamentary) issues. Modern Estate Planning is concerned with issues not merely related to the management and distribution of your property after your passing but also is concerned with the preservation of a person’s quality of life and well-being.
The most commonly known Estate Planning document, a Last Will and Testament is related to only post-death issues.
When a person dies in Florida without a Last Will and Testament, they are said to have died Intestate. When a person dies in Florida with a Last Will and Testament, they are said to have died Testate.
In Florida, very special laws exist for the benefit and of a homeowner’s heirs.
Without a Last Will and Testament to direct the distribution of the assets which are titled in the name of the Decedent (the person who has died), the assets will be distributed according to Florida Intestacy law. Florida Intestacy law predetermines the shares that a spouse and lineal descendants receive.
With a Last Will and Testament to direct the distribution of the assets which are titled in the name of the Decedent, the assets will be distributed according to the individual wishes of the Testator (a person who executes a Last Will and Testament) and as directed by the Testator in their Last Will and Testament.
Probate is the legal process by which a Decedent’s assets are marshaled, The Decedent’s debts are then determined, and finally, then the Court determines who is legally entitled to the assets either by Intestacy or through a Last Will and Testament. All assets titled in the name of only the Decedent, whether they pass by Intestacy or Testate are subject to Probate Administration which is also called less formally the probate process. Assets in joint name can have differing and varied treatment depending on the nature of the joint interest.
The other commonly used Estate Planning method is to establish a Trust. A Settlor is a person who creates the Trust. A Trust is a document that creates a legal entity (Trust) which is managed by a person called a Trustee for the benefit of the Beneficiaries who are the person(s) for whom the assets of the Trust are to be used upon the passing of the Settlor or upon a specified event. This can be done during lifetime or as part of post-death planning.
Planning techniques such as Health Care Advanced Directives are a necessary part of the modern Estate Plan.
Health Care Surrogate Designations provide guidance for family and professionals when the necessity arises. It authorizes the receipt of information by a designated person and permits the authorized individual to make health care decisions.
A Durable Power of Attorney can be drafted to provide similar provisions.
If necessary, a Living Will, preserves your directions as to the type and amount of care you decide to receive regarding end-of-life events.
A Guardianship is a Court created and overseen continuing proceeding wherein a person (Guardian) is appointed, after a determination that another person is Incapacitated due to age or infirmity, to manage their person/and or property. The incapacitated individual after being so determined by a Court is called the Ward (person from whom the Court removes rights to manage their person and property).
The Courts of Florida, upon the petition of an interested person, may appoint a Guardian for a person who has not reached the legal age of majority (18). A Pre-Need Guardian Designation permits a parent to designate who would care for the person and property of their minor children should something happen to cause both parents to be unable to care for the minors.
The Courts of Florida, upon the petition of an interested person, may appoint a Guardian for a person who because of cognitive (mental) or physical deterioration or catastrophe due to accident or injury can no longer manage their daily physical needs or manage their assets. A Pre-Need Guardian Designation permits an individual to designate who would they would prefer the Court to appoint as the Guardian of their person or property should they become unable to manage their daily physical needs or manage their assets.
No matter how thoroughly a person prepares their Estate Plan, the truism that families fight is most true when the family is dealing with the issue of an incapacitating condition of a family member or the death of a family member. A law firm with experience in drafting Estate Planning Documents; the administration of Guardianships, Trusts, and Estates; and which is actively involved in litigation regarding those areas is keenly aware of the types of issues that can be anticipated when family members are unable to co-exist amicably. The attorneys at the law offices of David Howard Goldberg, P.L. strive to anticipate to the greatest degree possible, based on your directions, what future issues may be anticipated and take such into account when drafting your personal documents.
Having a valid Last Will and Testament ensures that your wishes regarding who will receive your assets and in what amounts upon your passing are memorialized in an enforceable manner.
Subject to various claims of a spouse, a Last Will and Testament specifies which persons are to receive and in what amounts the Estate property upon your death after the completion of the probate administration a/k/a the probate process.
A well-drafted Last Will and Testament should contain a designation of the person(s) who you wish to name as your Personal Representative A Personal Representative is the person(s) appointed by the Court to be responsible for the administration of your probate estate. They are responsible to marshal and then manage your assets during the probate administration. In addition, the personal Representative is obligated to give notice to all know creditors who then may file a claim in the Estate. After the payment of all valid claims, the Personal Representative may then distribute the assets to the persons determined during the probate administration to be the Beneficiaries of the Estate.
If you are the parent of a minor child you may make a Pre-Need Guardian Designation for the person and property of your minor children should you not be survived by the other parent.
Without a Last Will and Testament, the decisions regarding the division of your assets are determined by the Intestacy law.
Without a Last Will and Testament, the decisions regarding who will be appointed Personal Representative will be decided in most part by the preference rules governing the priority of appointment of a Personal Representative in an Intestate Estate. If unfriendly family members or family members who you would not want appointed have equal priority with those family members you would have wanted to name, needless litigation can be the result.
Without a Last Will and Testament, the decisions regarding who will be appointed Guardian of the minor children should both parents not survive will be decided in large part by the decision of a Court or government agency. Absent a Pre-Need Guardian Designation, it is impossible for a Court to have knowledge of your preference. It may be possible that the family members who you would not want an appointed Guardian of your children’s person or property may become both.
In Florida, certain requirements must be met to ensure that you will be admitted to probate by the Court. Failure to follow the strict rules governing the procedures regarding the form of the document, Execution (signing) of the Last Will and Testament, and the witnessing of the document can result in the failure of the Last Will and Testament to be legally enforceable. In order to save administration costs, the use of a notary and a Self-Proving Affidavit should be a part of a proper will execution ceremony.
A Last Will and Testament may be amended by a competent Testator at any time prior to death. This can be done in a couple of different ways. The amendment to a Last Will and Testament is called a Codicil. The formalities related to the signing, a/k/a Execution of a Last Will and Testament, are equally applicable to a Codicil
A Living Will is an advanced directive regarding the decision to either provide, withhold, or withdraw the use of life-prolonging procedures. It applies when a person has a terminal condition, an end-stage condition, or is in a persistent vegetative state.
The purpose of a Living Will is to advise a medical provider of your wishes if you are unable to communicate such wishes yourself because you have become physically or mentally incapacitated and a doctor has determined that any further treatment you receive will only prolong the dying process.
You can also specify your particular wishes in regards to differing levels of treatment you are or are not willing to forgo.
Even more importantly, a Living Will can remove such decisions from the family. Decisions made under these circumstances without guidance from you can leave family members with the unanswered question of whether they had made the right decision and can result in lingering bitterness amongst family members with differing opinions.
Health Care Surrogate
You may designate a Health Care Surrogate under Florida law. This surrogate is authorized to make all medical and health care decisions on your behalf if you become incapacitated. Your surrogate is required to make the health care decision that he or she believes you would have made if given the choice yourself. If this is impossible to determine, then the surrogate must make a decision that is in your best interests.
Frequently Asked Questions
What are the benefits of a will?
A legally valid Last Will and Testament sets forth in a legally enforceable manner your last wishes as to the disposition of your assets and the persons with whom you entrust that procedure.
What happens if you die without a will?
When a person dies in Florida without a Last Will and Testament, they are said to have died Intestate. This is called Intestate succession. You get no say over what happens to your money and property if this happens.
Depending on whether you are married and have Descendants (children, grandchildren, etc.) from one or more marriages the Intestacy laws may dispose of your assets in a manner you never intended. If you have neither a spouse nor Descendants, then your estate may pass to relatives that you are even unaware you have.
Further altering your intent from the actual provisions of intestate succession is the current status of your marriage. The status of your marriage is completely irrelevant in the eyes of the Intestacy law. If you are separated or estranged from your spouse, or even in the process of getting a divorce, your spouse is entitled to their legal share of your estate regardless. Proper planning through a Last Will and Testament can, subject to statutory entitlements of a spouse, minimize this unintended result.
Intestate succession may not provide for the boyfriend or girlfriend, friends, stepchildren, nieces, nephews, or anyone else you may have wished to receive some part of your property.
What are the requirements for a will to be valid?
A Last Will and Testament must be a written document, executed by an adult who possesses Testamentary Capacity and it must be witnessed. It is called a “self-proving” will if it includes a sworn statement from witnesses who watched you sign the will. Absent a Self-Proving Affidavit, witnesses will need to come to court after your death and testify that they saw the Last Will and Testament being signed by you in their presence and in the presence of the other witnesses.
Can I make handwritten changes to my will?
No, changes must be made by either drafting a new Last Will and Testament or signing a Codicil in order to be valid.
Can I decide my final arrangements in my will?
Yes, if you wish to, you can specify what you would like to be done with your remains, or specify one person to decide. This can eliminate disagreements and conflict among your surviving relatives.