Estate Documents

Two things in life are certain; you must pay your tax (problems with that arena I refer you to your CPA, happily) and you die. It is the second certainly which we are concerned with.

Our system of law is patterned after the English legal tradition. The noble families of England wished to ensure that at the death of a family member, the deceased person’s real and personal property would pass on the person heirs or persons chosen by the deceased person. The family wealth could not fall in to the hands of the strongest person in the neighborhood.

To ensure the right of heirs or chosen beneficiaries, the concept of the Last Will and Testament was born. A Last Will and Testament is a formal document signed by the decedent during his/ her life stating the decedent’s express wishes regarding distribution of his/her wealth, naming the decent’s choice of who would oversee that distribution, containing instructions for payment of the decedent’s debts and finalizing instruction for care of the decedent’s bodily remains. The Last Will and Testament is an instruction manual for the family and for the community.

The Last Will and Testament is effective only upon death. The Last Will and Testament can not bestow any rights or responsibility to others effective prior to the decedent’s death. The document is necessarily very formal because no one can answer questions about what the decedent meant by a provision of the Last Will and Testament after he or she dies!

Each state in the United States has laws addressing what is required for a valid Last Will and Testament. Florida requires two witnesses and a formal signature.

In Florida, a Last Will and Testament contains the appoint of a Personal Representative (often called an Executor/ Executrix in other states) to oversee the “administration” of the decedent’s estate. The administration may by law require oversight by the Judicial system known as PROBATE of the estate.

It is very popular for people to want to avoid PROBATE because people fear the cost of involving an attorney and the Court. However, if someone challenges your last wishes or creditors seek to take your property, the Court is the institution that will protect your wishes once you are in the grave.

In Florida if you die without a valid Last Will and Testament, the Legislature has written a “will” for you. The distribution envisioned by the legislature may not be what you want. Also, many people moving to Florida have questions because they may have a Last Will and Testament drafted and executed in another state.

The best practice is for each person over 18 years of age to see a Florida licensed estate planning attorney to determine what documents are necessary to ensure that your last wishes are realized at your demise. If you are in a non-traditional relationship, if you are single, if you are married, if you are with or without children, if you are gay, lesbian or transgender, and especially if there are people or pets in your life that rely on you, seeing an estate planning attorney is so important (especially an attorney who has addressed the needs of non traditional families over the last twenty years- what changes we have seen!).

Remember not only old people die, very few of us plan our own demise. Those of us that are old , still think we will live forever. Statistic say otherwise. Please come and see me; after you are dead or you are incapacitated, sick or injured to extent that you no longer have legal capacity, it is too late. For over twenty years I have served Florida families, singles, gay and lesbian citizens to ensure the sanctity and legal effect of their last wishes.