In reference to a simple will, there is only one kind, so you won't have any big decisions on deciding what type of a will you need. You just need to organize yourself as to what you would like done with your property and possessions in the event of your death. Likewise, a husband and wife will is just two individual wills.

Remember, if you do not have a will the state will decide how your property will be distributed. Chances are, it won't be the way you would have wanted it.

When should you do a new will?

It should be carefully checked every few years to make sure it's provisions conform with changing federal and state laws as well as your own resources and wishes.

It is most important to have your will checked if anyone in your will has passed away, become incompetent, reached majority, or when moving from one state to another.

When you die, the place of permanent residence determines which states's laws apply. In some cases, unless your will is current and applicable, property owned in one state, even a bank account, will be distributed as though you made no will at all.

Planning your will

Planning your will need not be complicated. There are a few essentials everyone should know.

1. Know how much you're worth. When considering your estate take into account securities, bank accounts, your home, automobile, jewelry, pensions, IRA's and Keough plans, insurance and the appreciated value of real estate.
   
2. Use a qualified attorney to assist you in the preparation of your will. Don't be afraid to discuss your needs with your attorney. Proper preparation of your will, will avoid complications later.
   
3. Keep your family members informed as to your plans. Your family deserves to receive what you have promised them.
   
4. Assign beneficiaries to your life insurance rather that designate the estate as the beneficiary. Often the amount paid from a policy is added to the estate, and may push the estate value above the $650,000 tax threshold (year 2000).
   
5. Don't wait too long to begin. Planning is crucial for people age 50 and over, but it is also important for younger people too, especially if they have children.
   
6. Keep your will up to date. Laws change. Circumstances change. Review your will at least once a year.
   

Testamentary Trust Clause

If you have minor children or grandchildren, you need to consider a testamentary trust provision in the will making proper provisions for them to include naming a Trustee and Guardian.

A testimentrary trust clause is used when a beneficiary is either incompetent, a minor or the testator wishes to hold the assest in trust for the beneficary after his or her death. The trust is only set up after the testaors demise and therfor not living. The trust clause has the basic information neccessary to set up the trust.

If your estate has been greatly reduced through financial reverses you may wish to concentrate your bequests.

What is a Living Will?

A Living Will is a separate declaration wherein a person declares that if they should become terminally ill they authorize by State Law a family member and a Doctor to remove them from life prolonging equipment or prevent the hook-up to life prolonging equipment. If a person does not have a Living Will and is incompetent when they reach the hospital and is hooked-up to life prolonging equipment they will be unable to have that equipment removed unless they have a Living Will. Because you have a Living Will does not mean you have to use it but if you don't have it, it would be very unlikely that you could be removed from life prolonging equipment. A situation where this would apply would be if you were brain dead as a result of a car accident or if you had a cancerous brain tumor and you were rated incompetent and you and your family would prefer that you would come home to pass away, without a Living Will this would not be possible.

Durable Power of Attorney

The Durable Power of Attorney gives all power to make all decisions from the party who is granting it to another person. This power includes the power to make all financial decisions, sign all accounts, sell Real and Personal property, and make any medical decisions, such as enforcing a living will.

The Durable Power of Attorney, on its face, is a valid document, in other words, the person who has possession of it can present it to any authority, bank, title company, attorney, etc. and that's enough power within itself to give the person the authority to do anything in your place.

The only matter that the person you grant the power to cannot handle, is to make or change your will.

An example on how this power might be used becomes evident if you became mentally or physically incompetent as a result of a stroke or Alzheimers. In that situation the person who has the Power of Attorney could pay your bills, sell your property, pay your bills and make any medical decisions for you if you would be incompetent to do so.

Since this is a powerful document it is suggested that you do not give this document to the individual but keep it with your private belongings and they would be able to access it in case of your disability.

Many people question the need for this document since they say most of their property is jointly held. This might be true with regard to being able to access bank accounts that are jointly held. However, when it comes to real property the only way you can sell real property is by having the signatures of both the parties. When you are mentally or physically incapable of signing a deed, a Guardianship or a Power of Attorney is necessary. Sometimes situations arise when one or another of the Spouse becomes incompetent and needs nursing home care and the real estate needs to be sold so they can move closer to other loved ones. In that situation, the cost of a Guardianship can run as high as $2500 and there is also an annual reporting to the Court every year thereafter, detailing, what is being done with the persons possession or monies from the sale of real estate. The cost of a Power of Attorney is only $30.00.

Consequently, it is less expensive and more efficient to give the Power of Attorney to one you can trust instead of having Government in your back yard.

While the person given the Power of Attorney is competent, they may revoke their Power of Attorney at any time and it would become null and void.

So, what about the homestead?

So, you just purchased your new home. You remembered to get your homeowners insurance, and you just filed for the "Homestead" exemption.

By filing for the homestead exemption, what did you get? Most people just think of it as a way to reduce their property taxes, but it does entitle you to a few other rights.

Several legal consequences flow from owning homestead property. Florida law exempts the first $25,000 of the property's value from ad valorem property taxes. This is where your reduced property taxes result. But, it also exempts the property from the claims of most creditors, and restricts an owners right to transfer or give away the property during life or death. This final consequence creates estate planning obstacles for married Florida residents.

Therefore, if you're a first time home buyer, or you have recently re-located to our state, it's time to start planning your will.

The preparation of a will is a serious matter. A will is an instrument that expresses your wishes for the ultimate disposition of your assets. There may well be important points to cover so that the document will withstand the scrutiny of not only the courts, but of potentially questioning heirs.

Steven Lulich P.A. | Phone 772-589-5500 | E-Mail: steve@lulich.com
Offices in Sebastian, Florida