Staack, Simms & Hernandez, P.A. Law Firm Clearwater, Florida

Wills, Trusts and Related

Wills & Living Trusts

People often ask us about the difference between a will and a living trust. They are quite different, and since each can have a profound effect on you and your family, it is important to know a little about each.

When a person dies, her assets are usually transferred to her family, friends, charitable institutions, or to the state of Florida. Who these assets go to and how this is accomplished depends upon the planning that she has done during her lifetime.

Unfortunately, over seventy per cent of Floridians over the age of sixty do not have a simple will. Even fewer people under age sixty have a will. Their assets will be distributed according to a formula set out in Florida’s intestate laws. For example, if a woman dies leaving children and a spouse, the spouse receives roughly 30% and the children receive the remainder. If there is only a spouse, the spouse receives everything. If there are no children or spouse, then the assets go to the surviving parents, then to brothers and sisters. If there are no relatives at all and she leaves no will, then her assets go to the state of Florida.

Simple wills are relatively inexpensive and they can be done quickly. In Florida a person can leave their assets to anyone they choose, with the sole exception that their spouse has a right to approximately 30% of the estate.

Although it is a good idea to have at least a simple will, for many people a living trust suits their needs even better. The primary difference between the two is that a living trust avoids probate. Both probate and living trusts have the purpose of transferring the decedent’s assets to the persons of her choice. However, probate is time-consuming, it is considerably more expensive than a trust, and it is a part of the public record and available for inspection to anyone. The average probate proceeding takes from five to twelve months to complete, with eight months being the average.

On the other hand, the average living trust can usually be administered in a month or less, sometimes in just a few days. The advantages are obvious. With a living trust, the decedent’s assets are available almost immediately to pay for expenses such as funeral and burial and, house and vehicle payments. If there is real estate, it can be immediately transferred to the heirs or sold.

Even better, this is all accomplished without the expenses of opening a probate. Currently, basic attorney fees for probate average about 3% of the net estate worth, after deducting mortgages, taxes, etc. Also, the court cost and other expenses for a probate average about five hundred dollars. Therefore, the fees and costs on a fifty thousand dollar estate will average about two thousand dollars. A living trust usually costs about one fourth of that.

Whether a person chooses a simple will or a living trust, it is important that she have something so that her wishes are carried out after her death. Otherwise, the state of Florida will make those decisions for her.

Wills and trusts involve many considerations and it is not possible to address all of them here. Hopefully, this has answered a few of your general questions. We at Staack, Simms & Hernandez thank you for visiting our website. Please phone, write or e-mail if we can be of any further service to you.

Living Wills

A living will is a type of advanced directive to a health care provider. It tells your doctor or other health care provider how far they should go in providing medical assistance to you in case you become gravely ill or injured and cannot express your wishes.

Given modern medicine’s ability to prolong the life of a person who is clinically dead, it is very important that your wishes be known. The best way to accomplish this is with a living will, which is inexpensive and takes little time to create. If you have no living will or if the will you do have is silent regarding your medical treatment in the event of traumatic illness, hospitals and physicians will provide extensive treatment, sometimes called "heroic measures", to preserve your life. To many people, being kept alive by artificial means only to lie in a hospital bed with little or no hope of ever leaving, is no life at all. To others, the chance of recovering, no matter how slim, is worth all suffering. This is a very serious, personal decision. The living will allows you to make your own choice .

The subject of living wills involves many considerations and it is not possible to address all of them here. Hopefully, this has answered a few of your general questions. We at Staack, Simms & Hernandez thank you for visiting our website. Please phone, write or e-mail if we can be of any further service to you.

Health Care Surrogates

A health care surrogate is a person who makes medical decisions for another who is incapacitated. The surrogate is appointed in a written document which is signed and notarized and accepted by the surrogate herself. It is very important to consider having a health care surrogate appointed for you, especially in conjunction with a living will. A health care surrogate can carry out your wishes as they are expressed to him or her verbally or in writing in the form of a living will. A health care surrogate is easy to create and is relatively inexpensive.

It is not uncommon for a person to have his or her closest family reside in another state, and in such a case the health care surrogate, who should be someone local, is especially important. If you are so ill or injured that you cannot talk to your doctor or cannot understand your doctor’s questions your health care surrogate can speak for you in accordance with your instructions and your wishes.

The subject of health care surrogates involves many considerations and it is not possible to address all of them here. Hopefully, this has answered a few of your general questions. We at Staack, Simms & Hernandez thank you for visiting our website. Please phone, write or e-mail if we can be of any further service to you.

Durable Power of Attorney

A power of attorney is a written instrument authorizing another to act as agent or attorney. The person giving the power is called the principal, the person receiving the power is called the attorney-in-fact.

In Florida, the most common power of attorney is the durable power of attorney, so-called because it lasts until the death of the principal or until formally revoked by the principal. It even survives incompetency of the principal and therefore is invaluable in avoiding guardianship proceedings. Florida has a new law regarding durable power of attorneys that came into effect in late 1995. It gives broad powers and even authorizes the attorney-in-fact to transfer real estate.

The Power of attorney has many uses, and is helpful to people who travel frequently and need another to sign documents, as well as for businessmen who require the signatures of others who are often unavailable. It also is of great use for elderly relatives since it will survive incompetency brought on by age, illness or infirmity.

The subject of durable powers of attorney involves many considerations and it is not possible to address all of them here. Hopefully, this has answered a few of your general questions. We at Staack, Simms & Hernandez thank you for visiting our website. Please phone, write or e-mail if we can be of any further service to you.