In Florida, the law requires anyone signing a Last Will and Testament to have the requisite mental capacity in order for it to be legally binding. The individual signing the will must possess the following:
1) understand the nature of the testamentary act;
2) understand and recall the nature and situation of their property;
3) possess knowledge of the people who are the natural objects of their bounty; and
4) understand the manner in which the disposition of their property is to occur.
So, it may not be as simple as asking the person signing the will if they know today's date or their name. It's a little more complicated than that. This issue is one of several reasons why litigation during probate is such a point of contention. If a family member who is either going to receive very little or nothing from someone's will, they may attempt to argue that the will is invalid because the testator did not have sufficient capacity to sign the will in the first place. The effect is that the court could determine that the will is invalid, which would then make it as if the person died without having a will. The laws of intestacy would then determine the distribution of the decedent's assets. Still the court would have to rule on the issue of mental capacity, which is not an easy task.
This is why it's extremely important to have estate planning documents executed well before lack of mental capacity is ever an issue. On many occasions I had family members call me asking to make a Last Will and Testament for their loved ones, only to determine that they are in the late stages of dementia. At this point, it's too late to sign any estate planning documents. The next step would be to petition the court to be appointed a Guardian in order to sign legal documents on their behalf, except for a Last Will and Testament, which can only be signed by the testator. Expect the Guardianship process to be costly and time consuming. So, don't wait to execute your docs, as it's best to spend a little bit of money now, then to spend a lot more later.
Learn more about the basics of Last Will and Testaments and the different types of Florida Wills.
Estate Planning is the preparation for the transfer of your assets upon death, including how to handle your medical and financial affairs, if you were to become incapacitated.
Probate is the court process for transferring your property to your heirs after you pass away, including making sure all of your debts are paid. Depending on the type of assets, the value of the assets, whether or not you had a Last Will and Testament executed, amongst other things, the probate process can be lengthy and pricey. However, there are several ways you can avoid probate.
A Revocable Living Trust is a legal document that contains instructions on how to distribute your property when you pass away. The property transferred into the trust will not need be probated. The Trustee (manager of the trust's assets) will be responsible for making the distributions to your beneficiaries, according to the instructions of the trust.
Jointly Owned Assets are assets that transfer automatically to the named-survivor. For example, if you and your spouse own a home together that is deeded in both of your names, the property passes complete ownership to the surviving spouse.
Property bearing beneficiary designations will not be apart of probate because once you pass away, the property is transferred to the beneficiary named. For example, if you have life insurance policy with named-beneficiaries, upon your passing the insurance policy is paid directly to the those listed as beneficiaries, so it does not become part of your probate estate.
Unfortunately, and contrary to popular belief, a Last Will and Testament does not avoid probate. Furthermore, a Will only becomes effective once you pass away, which means it must be entered into probate in order for it to be validated by the court, and only then does it become effective. Although, a Will does not avoid probate, it is still an important document to have executed amongst the other important estate planning documents.
Please keep in mind that the information provided is not intended to be taken as legal advice. If you are interested in learning more, please give me a call or send me an email. Thanks!
This article is a follow-up to my previous post explaining the basics of a Florida Power of Attorney.
So, what are the reasons to appoint someone to use a power of attorney?
A) Convenience. If you will be traveling for the summer, undergoing a medical procedure, or simply would like to have someone (like your adult child) to continue paying your bills while you're gone, then you could appoint them to be your power of attorney.
B) Early stages of Dementia. If you or a loved one is beginning to suffer from memory loss, you could give someone you trust a durable power of attorney to handle your regular financial affairs, which will remain effective if and when you become completely incapacitated.
C) Unable to leave home. If you are unable to drive, bedridden, or whatever the case may be, you can authorize someone to be your attorney-in-fact (aka agent) to do things like go to your bank, visit the local social security administration office, or pay your real property taxes at the local tax collector's office.
But what are the ways to protect myself from abuse of authority?
A) Appoint a trustworthy person. There is no foolproof game plan that you can create that will prevent a person you appoint as your agent from abusing the power you have authorized them to exercise, but you can minimize the risk by appointing someone you can trust, someone you have known for quite some time, or someone you know is responsible in their own personal affairs.
B) Appoint multiple persons. Appointing multiple persons to act as your attorney-in-fact will allow them to regulate each other's behavior.
C) Setup checks and balances. There different things you can do to create checks and balances. For example, if you have given your nephew the authority to pay your bills by using the funds from your checking account, you can have the bank statements sent to your niece, so that she can review the activity in your bank account.
What can I do if someone is mismanaging my money with the power of attorney?
A) Revocation. You can always revoke the power of attorney at any time.
B) Contact Dept. of Children and Families. DCF in conjunction with other agencies protect disabled adults or elderly persons from abuse, exploitation or neglect, which includes abuse by someone appointed as your agent.
C) Contact your local police. Call your local police and file a police report.
D) Contact an attorney. Call your attorney to see what civil remedies are available to you.
This is a brief summary on some of the things surrounding power of attorney documents. A power of attorney can be extremely valuable resource that for many people become part of their daily lives. Please, remember that this information is simply meant for informational use only and not intended to be legal advice. If you or someone you know could use a power of attorney, please contact this office for a consultation. Thank you!
There are many things to consider when drafting a will. I have provided a short list below as examples
1. Personal Representative: A Personal Representative (aka Executor) is the person who you have chosen to be responsible for administering the will. For example, the personal representative will distribute any and all assets to all beneficiaries listed within the will. This is only one of many responsibilities this person is in charge of doing. This is why it's very important to choose someone who you can trust.
2. Guardian: A Guardian is the person who you have chosen to be the legal guardian of any minor children that you leave behind after your passing. Although it is ultimately up to the courts to appoint a guardian for your children, the courts will take into consideration who you have selected. It is extremely important to choose someone who responsible enough to care for your children. Maybe it's a relative or dear friend who you have known for awhile who shares the same values and morals, and is will to take this responsibility.
3. Trustee: This is the person who will be responsible for handling the monies you have left behind for the benefit of trust's beneficiaries. e.g., your children, grand children, etc. The monies can come from bank accounts, life insurance policies, and stocks/bonds, etc. This person should be financially responsible. It should be someone that has their own financial affairs in order, which can be demonstrated by the decisions they have made regarding their finances. It should be somewhat evident.
4. Disinheritance: Although this provision is optional, it can be used in the instance that you would like to make sure a certain family member (or friend) does not receive anything from your estate. For example, even though the will states who is to receive from your estate, it does not prevent someone from contesting the will or contesting the right to receive assets from your estate. If you suspect that someone will be there ready to fight for piece of your estate at the time of your passing because they think they're entitled to assets, you should consider adding this provision along with their name, in order to make sure your beneficiaries, personal representative, and the courts know that you don't want this person to receive anything.
5. Burial/Cremation: In this provision you will state if you want to be buried or cremated, and how it will be handled and by whom. This includes any church services, cemetery location, whether or not you want a private funeral service, and so much more.
These are just some of many things to consider when drafting a will. It is important to think about who will be the people who will take a role in your will, and how they will fit in this new role.
First, read up on the legal requirements of a will in Florida. Now onto the different types of Wills for people residing in Florida.
An Attested Will must be in writing and signed by the will creator (aka testator) and signed by two witnesses. In Florida, the most common attested types are the following:
1. A Simple Will leaves everything to the spouse (or children) with the exception of a few bequests (aka gifts) to named individuals.
2. A Complex Will is very detailed with many bequests, and may contain conditions, a testamentary trust, and a guardianship designation, etc.
3. A Pour-Over Will states that property that is not already in a living trust will be placed in your trust at the time of your death.
An Oral Will is not in writing but given orally to someone else. Oral Wills are not valid in Florida. Moreover, the same goes for Video Wills, which is the same as an Oral Will, but recorded on video. Since the video lacks the writing requirements (including the other necessary specifications) they are not valid in Florida, although a video can accompany a properly executed will that can be used to assist the family.
A Military Will is created while in "actual military service", and depending on the circumstances of the service member, Florida may allow their will to be less formal. In other words, service members may not have to meet the will requirements of Florida, in order to accept their will as being validly executed.
A Holographic Will is handwritten and signed by the testator, but not by any witnesses. This will is invalid in Florida.
An Out-of-State Will that is in writing and properly drafted under the jurisdiction of which it was executed will be accepted in Florida.
However, regardless if the will is properly executed under the laws of Florida, it can be contested. And if the will is contested using valid grounds (eg., fraud, undue influence, forgery, etc.) then the party presenting the will has to prove it's legality.
Please remember that this information is being provided to you as general information only and should not be used as legal advice. If you have any questions, please feel free to contact me.
Thank you and have a blessed day!
End of life! What a morbid topic! I can understand that the topic of dying can be scary (and probably even taboo) but it's inevitable. The sooner we accept it, the sooner we deal with it. Having said that, a survey conducted earlier this year shows that more than half of Americans are not prepared. Moreover, only 40% of adults in the U.S. have some form of estate planning document in place, either a Last Will or a Living Trust. Furthermore, the numbers are even lower for adults with children under the age of 18, with just over 30% having some form of estate plan executed.
The main purpose of executing an estate plan is so that you are in control of your personal affairs before and after you're gone. Believe it or not, so much can come from estate planning. For example, when you are thinking about your estate, you are considering many things such as your assets, whether it's your home, checking account, life insurance policy, 401k, or personal property like your gold watch or shoe collection. You are also thinking about your loved ones and how meaningful it would be if you were to leave each of one them with something of great sentimental value. e.g., Your oldest daughter will receive your wedding dress, your children are to equally receive the proceeds from the sale of your home, or the minor child is to receive life insurance proceeds disbursed by a trustee, who is to look over the funds until the child reaches the age of 19, 20, 21, or whatever the age you set.
However, distributing assets is not the only thing you can dictate in your will. You can also designate a guardian to look over your minor child. You will also designate your personal representative, which will be the person responsible of administering your estate. This can be any person you think is responsible enough to handle such tasks, though their are some eligibility requirements on who can serve as personal representative. If, however, there is no will in place, I can imagine the chaos that can ensue amongst siblings (and others) on who is to receive what! We have all heard about it. Someone dies and everyone is fighting to get a piece of the pie, but with a will, that pie has already been claimed. No fighting, unless there is some cause or legal justification to dispute the will such as undue influence or fraud in the creation of the will, or the person who created the will lacked the mental capacity to create the will in the first place. In either case, there must be sufficient evidence to support such claims, which is to be decided in court.
Lastly, once you have looked over your estate plan, you can be at ease knowing that after you're gone, you did the most you could to leave things as you wanted. Take some time to exam what you have, which includes your belongings, your family and friends, and how all of that will come together when you are gone. Just think about it for a little bit!
If you or someone you know is interested in creating a will, please give me a call at 305-814-4283, or email me at Gadiel@GespinozaLawFirm.com. Lastly, I serve clients from all over the State of Florida, so there is no need for you to reside in Miami or somewhere local in order for me to create your will. These transactions can be done via email, phone, and good Ol' USPS. Have a blessed day!
Life is unpredictable to say the least. No one knows if and when the time will come when we are to lose the ability to make decisions for ourselves. However, if the time does come we can be prepared. In Florida, there are several ways to allow people we choose to make decisions for us (guardians being one option) regarding our money and property, and the caring of our physical well-being.
In Florida, a competent adult (one who bears mental capacity) can name a guardian by simply writing a declaration naming an individual to be responsible for certain aspects of the declarant's life in the event of the declarant's incapacity. A declarant is the person creating the appointment of a guardian.
The written document must identify the declarant and the guardian, and be signed by the declarant in the presence of two attesting witnesses. It is not necessary to file the document with the clerk of court at this point, although it must be filed, if and when the guardian is to assume the responsibilities at the time of the declarant's incapacity.
Furthermore, before the guardian is to officially act as the guardian, the court must have an adjudication of the declarant's incapacity. Then the court must determine if the guardian is qualified to serve as guardian. Also, the declarant may appoint an alternate guardian in case the primary guardian is unable to perform their duties for whatever reason. The court is not bound by the guardians selected by the declarant, though there is a rebuttable presumption that the pre-need guardian is entitled to serve as guardian.
Lastly, and maybe most importantly, a pre-need guardian declaration is not the only way of creating this type of decision-making relationship between you and someone else. A durable power of attorney is another way. If you or someone you know is interested in learning more about a pre-need guardian declaration or some other estate planning document, please feel free to call me at 305-814-4283 or send me a private message. Thank you and have a blessed day!
Estate Planning can be a very tough thing to do, however, it doesn't have to be. Yes, it deals with the passing of a loved one, and yes, that is never easy, but when you break down the essence of what estate planning is and the affect it has on the love ones that stay behind, the discussion should get easier. Allow me to explain.
Estate Planning is meant to cover all of your last wishes. This includes how you will be medically treated if you were to become incapacitated or unable to communicate with your medical providers, how your assets will be distributed upon your death, who will be responsible for handling your financial affairs, and who will care for your minor children, amongst other important matters.
For starters, a Last Will & Testament (aka Will) describes how your property will be distributed amongst your family and friends upon your passing, which can prevent the guesswork and fighting that can ensue, if there was no way to know how you would want the items distributed. This can prevent so many problems between family members. Moreover, if you don't have a Will, then the laws of Florida will dictate who is to receive your property through the use of probate. Furthermore, the court will appoint a personal representative to be charge of distributing your property, which can be someone who you wouldn't have wanted to do so in the first place. So, rather than you making the decisions, the laws of Florida will do it for you.
Another important legal document that should be a part of your estate plan is a Living Will. This document (aka Declaration) setsforth what will happen if you are dying. For example, it can state if you are to be treated by artificial means such as providing you with CPR, artificial food and water, intensive care treatment, and even pain medication, just to name a few. If you do not have a Living Will in place and become unable to state your wishes, your family may and most likely will have to make these decisions for you, which could weigh heavily on them well after you are gone.
Next, a Health Care Surrogate Designation (aka Medical Power of Attorney) can be used to appoint someone to make medical decisions for you, even if you are not incapacitated and/or dying. This authority allows your Surrogate to obtain your medical records and speak with your medical service providers about any options available to you, regarding your particular circumstance. Moreover, if you are unable to speak with your doctor, specialist, or whomever, regarding your particular medical situation, your Surrogate would step in your place and have these discussions, in order to receive the information and make an informed decision on your behalf. This document is much broader than a Living Will.
Also, there is the Durable Power of Attorney. This document is similar to the one mentioned immediately above, however, it deals specifically with your finances. For example, it can allow someone to run your business if you are unable to, or if you have bank accounts that are solely in your name, this will allow the person you designated as your agent to have access to your account and pay any bills, loans, etc. And this could go for all of your financial affairs. e.g., paying loans, credit cards and other bills, signing contracts and deeds, and even your tax returns, amongst many others. Once you think about all that there is regarding your finances, you will get a clear picture for the purpose and importance of having this document in place.
Lastly, a Pre-need Guardianship Designation is another extremely important document to have executed as part as your estate plan. This document allows you to appoint someone who you would like to care for you, if you were to become unable to care for yourself. This is another area that the court will decide for you, if you haven't done so beforehand. So, the idea behind this document is to designate someone who you would like to care for you, before the court appoints someone you wouldn't want to care for you.
In summary, estate planning is as much about you as it is about your loved ones. Because the hard truth is, once you are gone, they stay behind. And if you haven't left your affairs in order by way of an estate plan, they are left to handle it the best way they can, which sometimes can cause a lot of avoidable issues amongst family members, especially, at a time when they are coping with losing you. This information is only meant to give you a general and brief overview of estate planning, as there is much more to it. If you are interested in learning more about estate planning, please give me a call or send me a message. Thank you.
Medicaid is a (joint federal and state) run program that provides health coverage, along with the Children's Health Insurance Program (CHIP) to over 70 million Americans, including seniors and individuals with disabilities, parents, children, and pregnant women, amongst others. It is also the (single) largest source of health coverage in the US.
In order to be eligible for Medicaid in Florida, which is administered by the Agency for Health Care Administration (AHCA) and determined by the Department of Children and Families (DCF), you must meet the following criteria:
Parents and Caretaker Relatives of Children
Parents and other caretaker relatives of children up to age 18, who reside with their parents or caretaker relatives, may be eligible for Medicaid. However, the family's countable income must not exceed the income limit.
The Parents and caretakers whose family income level is below the limit set for the age of the child, may apply for Medicaid on behalf of the child, who's below the age of 21. Also, it is not necessary that the child reside with the parent or caretaker who's applying for the Medicaid.
A pregnant woman whose family's countable income is below the income limit, may qualify for Medicaid.
Former Foster Care Individuals
People who are below the age of 26 may qualify for Medicaid, if they resided in foster care that was under the responsibility of the State of Florida, and received Florida Medicaid when they aged out of foster care. Please note that there is no income limit under this program.
Aged or Disabled
Those who are 65 or older or disabled, and are of low income, may qualify for Medicaid.
If you or someone you know is interested in learning more about Medicaid, please let me know.
I have a general practice with an emphasis in Estate Planning, which includes Last Will & Testaments, Living Trusts, Power of Attorneys, Health Care Surrogate Designations, and Living Wills, and more.