Portrait of Cathy Blackburn Attorney at LawWHAT IS A WILL?

wills-life-planning-service-st-petersburg-florida. A will is a formal document that directs how a person’s assets will be distributed after death. It appoints someone to be responsible for gathering and distributing the assets (in Florida, this is the “personal representative”), defines who will receive the assets (the “beneficiaries”), and directs how the process will proceed. The process begins after the will has been “admitted to probate” and is supervised by the Probate Court.

WHAT IS A TRUST?

A trust is an arrangement in which one person or entity (such as a bank) holds property for the benefit of another. Technically, the trust is created upon transfer of the property. Ordinarily, trusts are created by a written document (an “express trust”), but they can be created in other ways (e.g., a “constructive trust”).

DO I NEED A WILL?

The answer to this question depends on how you define “need.” If a person owns assets in his or her name alone and dies without a will (dies “intestate”), state statutes provide how the person’s assets will be distributed. In today’s world, intestate distribution can be complicated if the deceased person (the “decedent”) is or was married, has or had children, or has a business. It can also be complicated if any of the decedent’s spouse(s), children, parents, or siblings have died or if the decedent has or had step-children.

It is important to know that intestate distribution is not automatic. It requires court intervention, can result in challenges and litigation, and can be expensive. If a Florida resident dies with only limited assets, the estate may be eligible for a simplified court proceeding (“summary administration”) or even no administration. However, making use of the summary administration or no administration procedures usually requires the advice or assistance of a lawyer.

Only you can decide whether the cost and difficulty of distributing assets through intestate procedures is better than the cost of preparing a will. At Blackburn Law Group, we strongly recommend preparing a will, even if you believe you “have nothing” or you put your assets in someone else’s name.

CAN I “AVOID PROBATE” BY PUTTING MY ASSETS IN SOMEONE ELSE’S NAME?

Maybe. If you are very careful to “title” all your assets, every single one, in a specific legal way you can avoid the need to open an estate. However, this process is very specific and requires precise consistency. Even professionals such as bank officers, real estate agents, and title insurance agents often misunderstand the specific meaning of title conventions, and human beings can make mistakes when preparing documents. Life does not hold still and assets are almost always changing in some way. In addition, putting your assets in someone else’s name can have unintended consequences. For example, putting your bank account in your name and the name of one child will usually prevent other children from sharing in the account after your death. Trust and estate lawyers include a will with estate plans even when the plan is designed to distribute all assets outside the estate. This is “just in case” something arises outside the estate plan.

WHAT IS A “TITLE” TO AN ASSET?

A “title” to an asset is the name of the owner(s) of the asset. We often think of the “title” to a car or the deed to a house. In this context, the “title” and deed are pieces of paper. The “title” to an asset is the way the owner(s) is worded and includes the way the owner is listed on a “car title,” deed, bank or brokerage account, stock certificate, or the like. Individual ownership (one name only) and joint ownership (more than one name) are the title conventions most often seen. Joint ownerships are often stated as “joint and survivor” ownership or “common” ownership. Titles can also include “pay on death” or contingent ownership.

WHAT ARE ASSETS?

Assets are tangible things you own. They include the things people usually think of, such as real estate, cars, cash, money in bank accounts, household furnishings, jewelry, stocks, and bonds. They also include things people don’t usually think of, such as pets and the right to bring a lawsuit. For example, if a person or company owes you money and does not pay, you have the right to bring a lawsuit. If a person negligently injures you, you have the right to bring a lawsuit. There are other circumstances that give you the right to bring a lawsuit.

If you die after starting a lawsuit (but before it is concluded), the lawsuit is an asset of your estate. If you die before exercising your right to bring a lawsuit, that right may be an asset of your estate. Proceeds from lawsuits can be substantial.

With a will, your chosen “personal representative” steps into your shoes and exercises your right to bring and resolve a lawsuit. With a will, the proceeds of the lawsuit will be distributed to the people or charities that you choose (except for “wrongful death” lawsuits). Without a will, the court will appoint a personal representative and state statutes will decide who receives the proceeds of the lawsuit. Even if you believe you will never be involved in a lawsuit, you may be cheated out of a substantial amount of money or seriously injured by someone’s negligence. At Blackburn Law Group, we recommend considering the possibility of a lawsuit when preparing a will.

WHAT IS WRONGFUL DEATH?

Wrongful death is death caused by the fault of another. All states provide some kind of right to sue for wrongful death, and federal law recognizes this right in many circumstances. Florida statutes govern wrongful death lawsuits and give strictly defined survivors the right to recover strictly defined damages. In Florida, damages from a wrongful death lawsuit are distributed according to the statute and not according to a will. The personal representative named in the will is responsible for bringing and resolving a wrongful death lawsuit.

AFTER A PERSON DIES, AREN’T ALL LAWSUITS “WRONGFUL DEATH” LAWSUITS?

No. Only if the decedent dies from the wrongful conduct is the lawsuit a wrongful death lawsuit. For example, contract lawsuits are not wrongful death lawsuits. Consumer fraud lawsuits are not wrongful death lawsuits. Even injury lawsuits are not wrongful death lawsuits unless the injury is death. It is not uncommon for a person to have an injury lawsuit but die from a different cause. Sometimes people even die before they bring a lawsuit. Lawsuits brought or continued after death are either “wrongful death” lawsuits (if the person died from the fault) or “survival” lawsuits (if the person died from a different cause). The difference between a “wrongful death” lawsuit and a “survival” lawsuit can be complicated. At Blackburn Law Group, we can help you understand the difference and refer you to a litigation lawyer.

DO I NEED A LAWYER TO PREPARE A HEALTH CARE SURROGATE OR LIVING WILL?

No. Many hospitals, nursing homes, and other health care providers have forms for health care surrogates and living wills. If you understand and agree with everything in the form, and there is nothing else you want to express that is left out of the form, you can use the form. Even if the form does not include everything you want to express, you can use the form “for now” and modify it later. At Blackburn Law Group we are here to help you. For an hourly fee, or as part of preparing other documents, we will review any forms you have, explain them to you, and provide recommendations to make sure they include everything you want to express.

CAN’T I BUY A DOCUMENT AT AN OFFICE STORE OR ON THE INTERNET?

Yes, you can buy any planning document at an office store or on the internet. The document you buy may or may not work in your state. Unless you understand the exact meaning of every part of the document and everything you write into the document, it may or may not accomplish what you intended to accomplish. At Blackburn Law Group we are here to help you. For an hourly fee, we will review any document you have, explain it to you, and provide recommendations to make sure the document accomplishes what you intend to accomplish under Florida law. You do not have to hire us to prepare your documents.