FREQUENTLY ASKED QUESTIONS

ESTATE PLANNING

What is a will?
A will is a written direction controlling the disposition of property at death. The laws of each state set the formal requirements for a legal will. 

Who may write a will in Florida?
The laws of Florida require that the testator (the maker of the will) must be at least 18 years old and that the testator is of sound mind.

What does a will accomplish?
A will can allow you to avoid Florida intestacy laws, name your personal representative, create a trust, devise property, make gifts to charity, reduce estate and income taxes and name a guardian for your children. You should consult with an attorney to see why you would benefit from created a will.

What happens if I don't write a will?
If you die without a will (this is called dying "intestate"), the Florida inheritance statute determines who gets your property. The Florida inheritance statute contains a rigid formula and makes no exception for those in unusual need or for the deceased?s wishes. You should consult with an attorney to make sure that after you die your property is distributed as your see fit.

How long does a will last?
A will is "good" until it is changed or revoked in the manner required by Florida probate law. Changes in circumstances after the execution of the will, such as tax law amendments, deaths, marriage, divorce, birth of children, or even a substantial change in the nature or amount of your estate, may raise questions as to the adequacy of your will. All changes require a careful analysis and reconsideration of all the provisions of your will and may make it advisable to change the will to conform to the new situation. You should consult with an attorney to see if any there are any changes in your circumstances to make sure that your wishes will not be affected.

Can I change my will after it has been created?
Yes. No will becomes final until the death of the testator (the creator of the will). It may be changed or added to by the testator by drawing a new will or by a codicil, which is simply an addition or amendment executed with the same formalities as a will. A lawyer can assist you in ensuring that the formalities required by Florida probate law for a valid new will or codicil are properly followed. 

Can I write my own will?
The laws of Florida have many formalities for a will, which if they are not followed exactly will result in an invalid will. Consult an attorney who can assist you in ensuring that the formalities required by Florida probate law for a valid will are properly followed. Moreover, there is no such thing as a ?simple will.? Even smaller estates can have complexities only foreseeable by an attorney. 

What is a living will?
A living will is an additional document under Florida Statutes which allows one to provide for a written declaration by an individual specifying directions as to use of life-prolonging procedures. Also known as an advanced directive.

What is a durable power of attorney?
A durable power of attorney is an additional document that can assist in handling the property of a person who has become incapacitated without having to open a guardianship proceeding in probate court. This is especially valuable for paying the bills and protecting the assets of an incapacitated person.

What is a health care surrogate?
A health care surrogate is an additional document under Florida law, which allows individuals to designate a person to make health care decisions for them when the individual may not be able to do so. Included in this important appointment is the power to decide when to withdraw medical procedures.

Can my will be contested?
Yes. There a several reasons why a will can be contested which is why is it important to consult an attorney so that your will can survive a challenge in court. Some examples of why a will may be contested in court is lack of capacity or undue influence by another individual at time of execution of the will. 

What are the benefits of a revocable trust?
Some of the benefits are as follows: (1) You can avoid probate proceedings and fees; (2) The Trust is not filed with any court upon your death which means that your financial affairs and beneficiaries remain confidential; (3) Your assets are immediately available to pay expenses and make distributions; and (4) You may avoid guardianship proceedings if you become incapacitated.

What is Estate Tax?

A federal tax on the value of the property held by an individual at his or her death (paid by the individuals estate, not the heirs or beneficiaries of the estate).  

What is a beneficiary?

The recipient of a bequest from a will or a distribution of a trust.

What is a bequest?

A transfer of property to an individual or organization under a will.

What is a personal representative?

The person named in a will to administer the estate (also known as Executor).

What is a codicil?

An amended to a will.

When should I revise my Will?

Creating a will is a good first step.  But even once you have one, you will want to examine it periodically to make sure it continues to reflect your wishes.  At the very least, your will should be reviewed and possibly revised any time you have experienced a major life change, such as: loss of a spouse, remarriage, divorce, death of an heir, significant change in health of your proposed personal representatives, changing family relationships, birth of a child or grandchild, major shift in assets, and changes in estate tax law.  

How can I make financial and medical decisions for my child after he turns 18 if he is incapacitated?

Your young adult needs a Durable Power of Attorney and Designation of Healthcare Surrogate so that you can make decisions in case he is in an accident or ill.

Must I leave $1.00 to a child in my Last Will & Testament that I don't want to inherit?

No. The Will can state you purposely have made no provision for that child.

Should I sign the admission agreement for the nursing home/assisted living facility on behalf of my parent/spouse?

If your parent is competent, have him sign the agreement. Otherwise, if you are the power of attorney or healthcare surrogate, indicate that when you sign it to avoid being a guarantor of payment.

What options are available to help me pay for long term care?

Long term care insurance, veterans benefits, social security benefits, Medicaid.

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After reading the answers to these  frequently asked estate planning questions, you may still feel unclear or perhaps you found yourself with new estate planning-related questions - contact Grimaldi Law Firm today.