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DO YOU HAVE A WILL?
WHAT CAN BE ACCOMPLISHED BY A WILL?
1. You decide who gets your property instead of the law making the choice for you. This can be of upmost importance if you wish to leave property to someone to whom you are not legally married or related.*
2. You may name the personal representative (executor) of your will as you choose, provided the one named can qualify under Florida law. A personal representative is one who manages an estate, and may be either an individual or a bank or trust company, subject to certain limitations.
3. You may make gifts, effective at or after your death, to charity.
4. You decide who bears any tax burden, rather than the law making that decision.
5. A guardian may be named for minor children.
WHAT HAPPENS WHEN THERE IS NO WILL?
*If you die without a will (this is called dying "intestate"), your property will be distributed to your heirs according to a formula fixed by law. In other words, if you fail to make a will, the inheritance statute determines who gets your property. The inheritance statute contains a rigid formula and makes no exception for those in unusual need or special circumstances.
WHAT IS A WILL?
A will (last will and testament) is a written direction controlling the disposition of property at death. The laws of each state set the formal requirements for a legal will. In Florida:
1. You, the maker of the will (called the testator), must be at least 18 years old.
2. You must be of sound mind at the time you sign your will.
3. Your will must be written.
4. Your will must be witnessed in the special manner provided by law for wills.
5. It is necessary to follow exactly the formalities required for the execution of a will
6. To be effective, your will must be proved in and allowed by the probate court.
No will becomes final until the death of the testator, and 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 of a will. A will's terms cannot be changed by writing something in or crossing something out after the will is executed. In fact, writing on the will after its execution may invalidate part of the will or all of it.
WHAT ARE "PRE-NEED" OR "ADVANCE DIRECTIVE" DOCUMENTS?
These are documents that you need to prepare for those times when you cannot provide for your own needs. These documents are essential for anyone of any age. Again, if you wish someone to whom you are not legally married to perform these functions for you, you must have them. They include:
1) LIVING WILL (NOT TO BE CONFUSED WITH THE LAST WILL AND TESTAMENT).
This document directs the providing, the withholding, or withdrawal of life prolonging procedures in the event one should have a terminal condition.
2) HEALTH CARE SURROGATE DESIGNATION.
Any competent adult may also designate authority to a Health Care Surrogate to make all health care decisions during any period of incapacity. During the maker's incapacity, the Health Care Surrogate has the duty to consult expeditiously with appropriate health care providers to provide informed consent and make only health care decisions for the maker which he or she believes the maker would have made under the circumstances if the maker were capable of making such decisions.
3) HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996 ("HIPAA") RELEASE.
This document provides authority for your Health Care Surrogate to have access to your medical records in order to make informed decisions.
4) DECLARATION NAMING PRENEED
GUARDIAN.
This document designates the person you wish the court to appoint as guardian of your property and person if you become incapacitated.
5) DURABLE POWER OF ATTORNEY.
Designates the person who will be your agent to handle your business affairs in your place.
We strongly recommend that you have all of these documents and make them all available to you for the price of preparing your will alone.
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