Lunch With A Lawyer - Aug 8, 2017

 

 

Video Summary

 

Hi. I'm Chip Waller. Welcome to Lunch With a Lawyer. I believe this is our 14th session. We've been doing this a little over a year, and so we welcome any questions that you may have. If you post them to the Facebook page, well, we're live, and we will try and answer them right as we speak. I usually try and pick out a topic to talk and talk about, and hopefully it's something that you'd be interested in, is do I need to probate a will?


We'll be talking about that today, but I wanted to let you know that we're going to be changing the name of the firm to the Law Office of Roland D. Waller, and we're transitioning from the Waller and Mitchell that's been that way for the past 20 some odd years, and that Mr. Mitchell has been retired for a couple of years, so we're going to go with the Law Office of Roland D. Waller. I've got to get used to that, because I've been talking about Waller and Mitchell for a long time, but we still have the same phone number. We still have the same website, and so nothing has changed, and I'm still right here. We have Erica Muns, who is handling guardianships and taking over Mr. Mitchell's clients as far as that's concerned, so there's not be a drop off.


Again, if you have any questions, well, post them on Facebook, and I have Josh who is the producer here, and he's monitoring this. He'll give me a heads up that if anyone has a question about anything, I'll try and answer it or tell you I don't know the answer. I'll tell you to call me and leave a message, and I'll call you back and try and refer you to someone.


Turning to the topic today, which is, "Do I need to probate a will?" Well, there are any number of variations on this. Many times, people when they sign wills, believe that they can avoid probate by signing a will. That is a myth, and that wills may have to be probated, even if ... Just because you have a will doesn't mean you avoid probate. The reason why you would need to have a probate proceeding, whether you have a will or don't have a will, is if there are any assets that are just in the decedents name alone so that you are unable to transfer, sell, or do anything with that asset is the reason that you would have to go through a probate proceeding, whether or not you have a will or not.


What the will does is it facilitates a probate proceeding if there is an asset. The asset ... The will designates who you wish to receive your assets, and it may be what they call a specific devise in the will that says, "I leave my house to my daughter." That would be a specific devise. Or it would say that, "I devise $10,000 to my granddaughter." That would be also a specific devise. So wills can designate to whom you want your assets to be distributed. Sometimes I get the question about whether you need to probate the will. They call up and say, "Well, I'm the only heir. My sister and I are the only two that have any interest in this, so do I need to probate the will?" The answer is yes. What the will will do will be the link between the decedent and then who is going to receive the asset after they pass on.


With real property, once the will is admitted to probate, the title to the property vests the instant of death into whoever the designated beneficiaries are under the will. Now, the title to the property can be divested as a result of creditors and has to be liquidated unless it was the decedent's homestead property. Probating a will is something that you do have to do as far as getting the ... Having the assets be distributed to a beneficiary who's designated under the will.


Logically is how do you know who is supposed to get the asset unless the will is admitted to probate and its in the public records? Now, many times with the homestead property ... That's where the decedent lived ... that has a special ... Is handled differently than other real estate if the decedent didn't, as far as their homestead is concerned. The Florida statutes talk about the home and passing to ... If it's devised under the will ... to a family person or a blood relative, well, then it passes to the blood relative without any ... Creditors cannot claim any interest in the homestead property. Now, that's not to be confused by having a mortgage on it.


Josh is giving me a heads up that someone has got a question for me, which I very much appreciate. It's sort of lonesome out here in front of this camera.


Josh: All right, Mr. Waller. The question is, "How often should I change my will?"


Chip Waller: The question is, "How often should I change my will?" That's an excellent question, and I get that asked often, probably not often enough, however. The answer is is whenever there has been a change in circumstances as far as your beneficiaries are concerned or as far as your financial being is concerned, whether your assets have increased substantially or unfortunately have decreased substantially. Those are the times whenever you would do that.


Most of the time, I'm dealing with folks where there's been a change in who they want to be beneficiaries, particularly with grandparents, and say, "Well, my son, he's doing really, really well. I really want to make sure ... Set up something for his college, for my grandchildren." That's whenever it was one of them. Tragically, if you would lose a child, sometimes you would need to look at your will to see whether or not you need to make a change as far as providing for the decedent's widow or their children. Sometimes after ... Particularly if there's been a remarriage and you lose your spouse, depending on how the deceased spouse's children or your step-children have treated you, you may wish to change your will to reflect different beneficiaries.


It's usually a change in your family and what has transpired there. From time to time, you have children who make some bad decisions as far as life is concerned and have certain problems. Some children may have a problem managing money, and you want to make some sort of provision for them. Those are some of the circumstances as to how often you need to do it. I recommend you reviewing the will. Try and do that maybe once a year. Don't put your will in your safe deposit box. Keep a copy out so hopefully you'll look at it about once a year, and just see if it's the way you want it. Also, if you had minor children, you waited so long that they're now adults, you may want to change who your executor is, and you don't need guardianship.


Josh has another question, and I really appreciate you all sending in questions.


Josh: The question is, "Is my will still valid if my spouse passes away and I have not updated it?"


Chip Waller: The question is, and I don't know if you can hear Josh, but anyway, they wanted to know whether or not the will is still valid if you lose your spouse and you haven't updated it. The answer to the question is yes, probably. Most wills provide that ... It says that, "I leave everything to my spouse." Then the next paragraph says, "In the event my spouse predeceases me, then I leave everything to my three children," or whom you leave it to. You also usually name your spouse as your executor, and the alternate personal representative or executor.


It's not a problem as far as the will being valid. We would just need a death certificate for the deceased spouse as well as your death certificate when you pass away, and it would then show whom you want your assets to go to, and also who you want to be the executor. I would urge you to check in with your attorney or hopefully me and review your will to see if there are any change in circumstances as far as who you want to receive your [inaudible 00:10:30]. Also, what they call a health care surrogate. That's where you designate someone to make healthcare decisions for you [inaudible 00:10:54] waiver.

The third, a durable power of attorney, so that if you would have any incapacity, that you could avoid a guardianship and have [inaudible 00:11:08].

Josh raised his finger again, so we're getting some good play today, and that's great. What's the third question, Josh?

Josh: If I've done [inaudible 00:11:20] documentation on a website [inaudible 00:11:24] you of those documents?

Chip Waller: Hopefully everybody heard Josh, but so I don't need to repeat it like I did the first two. The answer is no. We'd be glad to look at them, but as far as me looking at them and telling you that, "Well, yeah, they're just fine," particularly as far as your will is concerned, I could probably do that as far as your [inaudible 00:11:54], and so if it has the statute [inaudible 00:12:02] I could. I could also pontificate or talk to you about whether or not some of the other provisions will be followed. With a living will, that's something that it's up to the medical community. With the healthcare surrogate form, that statute's been changed recently, and sometimes with these websites, they combine the two, but probably could look at that and try and sort all that out and [inaudible 00:12:32] the will is concerned, that's particularly critical.

What we have found, depending if you use LegalZoom or Rocket Lawyer or whatever, by the time I go through and try and analyze all this, the fee for me redoing them and explaining and all that is probably going to be just about what you ... Cost the same as if you didn't have them as far as that's concerned. It's somewhat dangerous as far as ... I think it's dangerous as far as going to a website, particularly as far as the execution of a will. That has to be done with certain formality, and if it is not, the will may not be effective, and also discuss the operational effects of it. I hadn't even talked about taxes yet.

There's another question. Yes, Josh?

Josh: What types of documents do I need to have when [inaudible 00:13:40]?

Chip Waller: [inaudible 00:13:42] your children or who the beneficiaries are. Some of the other things that you need to do is know how your ... What assets you own and how they are titled. Do you have them titled in your name and jointly with someone else? [inaudible 00:14:22]? Are they payable on death? Do you have life insurance? Do you have an IRA? All of these documents is very helpful if you have them, although the primary thing that you need to have is who you want the beneficiaries are.

I have, and we could send to you if you want, a fact information sheet for you to fill out that you'll bring all this information in. It's my own bias just as far as having to fill this thing out and ask so many questions. It's sort of a hassle, but if you would like, we could probably send you an information sheet and have you fill out all the information, and then spend our time chatting with you about your estate plan. Usually in an estate planning conference, spend a few minutes talking about estate taxes. The federal and the lack of federal estate tax [inaudible 00:15:28], the non-existence to Florida of estate tax.

Then I talk about how to title your assets, which is important to bring those documents with you. Most people want to know, "Well, can I avoid probate?" And so to see about how to title the assets. In following up with some of the other questions, if you lose your spouse, that's a critical time to possibly come in for another estate planning conference so that you know or talk about, well, if you have a functional family and you just want your two or three children to receive your assets, well, how can you set those up so they'll automatically go to your children? Particularly with deeds or property.

If you own your home, it's titled in your name. "Well, is there something I can do so that the property will pass directly to my kids upon my death without adding them to the title as joint tenants during your lifetime?" Yes, there is, and that's another estate planning tool. I think the operative words is estate planning, planning, planning. By doing that, you plan on how the estate can be automatically passed to your beneficiaries without the need for probate. That's why they call it planning, and if you lose your spouse, well, that's really a good time to come in, talk about updating your will, and what your estate plan is, whether you need a trust or whether you need to use [inaudible 00:17:08].

I guess Josh has another question for us.

Josh: If a relationship status changes from a fiance to a spouse, does the estate planning have to be redone as well?


Chip Waller: That is another terrific question, and you all are really doing a great job of asking questions. The answer to that is I suggest that yes, you should come in and redo your estate planning documents. More importantly, as far as estate planning is concerned, to check on the status of title to your assets.


Whenever you become married, you can create or hold title to assets as tenants by the entireties. That is a biblical concept that's been carried over from the English common law. It's been incorporated in the Florida law, and so when you get married, you become as one, and that's called tenancy by the entirety. So a married couple owns an undivided interest in whatever assets that they hold as husband and wife or tenancy by the entireties, whereas if you own the property prior to marriage and you own it as joint tenants with right of survivorship, each of you own a one-half interest in the property. There are certain benefits as far as owning assets as tenancy by the entirety.


Also, with a will, depending on if your prior will said that you left everything to your spouse or left everything to your fiance, well, then it's not critical as far as who would receive it upon your death if you had any assets just in your name alone. However, if you didn't provide for her in what they call in contemplation of marriage, well then your fiance would then have certain rights to claim against your estate as far as that's concerned. I think it would be a terrific idea to go ahead and look on how you have your assets titled as well as looking at your assets or your estate planning documents. Hopefully, I answered that question, and it was a segue into talking about tenancy by the entireties.


What are the benefits of tenancy by the entireties? If there's a judgment entered against either spouse, just one spouse, and you hold assets as tenants by the entirety, that particular asset cannot be attached by the creditor if it's held as tenancy by the entireties. That's critical or a nice asset protection way of protecting your assets, particularly whenever you look at the billboards up and down 19, where everybody is wanting to look at automobile accidents.


To that end, that's ... An automobile is a dangerous instrumentality, and so the owner of the vehicle, if it's involved in an accident, can be sued. I suggest that if you have more than one vehicle in the family, that you place each vehicle, title it in the name of whoever is driving it. That way if the driver is involved, he may get sued and is also the owner, whereas if the driver is involved and the vehicle is owned jointly, well, then both of you could be sued because it's a dangerous instrumentality. That's just a little bit of asset protection. I don't suggest you run out and change all your titles immediately, but just keep that in mind whenever you swap around cars or buy your spouse a new car. Well, just title it in her name if that's what she's going to be driving. That way, you can keep your assets and hold your assets as tenants by the entireties.


Most real property that is held, you create a tenancy by the entireties by titling your asset as husband and wife, which is how most married people take title to real estate, which creates the tenancy by the entireties. What you can do also as far as bank accounts are concerned, you need to make that designation on the signature card. Now, that is critical. You check with your bank the next time you're in and say, "Well, is this ... How do I hold title to this? I saw a YouTube presentation, and the presenter said that we could designate this to be tenancy by the entireties."


Most banks offer that. If you could change or designate that, that would be good for you as far as a little bit of asset protection. If banks only offer joint tenants with right of survivorship, and you are married when you establish the account, then it can be shown that you intended to hold it as tenancy by the entireties. I think most banks ... I'm not sure which ones don't, but many of them do offer the account to be held as tenancy by the entireties. That is something you might want to look into.


I'm not sure how long I've been rattling on here, but you all had some great questions. We've had about ... Been on the chatting here for about 25 minutes, and so if anybody else has any questions, that would be great. I really appreciate the participation, and it looks like we got a pretty good topic this time. I look forward to seeing you next month on the second Tuesday of the month. Also, for the viewers of this YouTube, if you're out of state, I'm a Florida lawyer, so everything I'm talking about is only Florida law.


If you have a question, well give me ... We got a question? Yeah. All right. It's never too late. As long as we're on the air, I'm always game for another question. What is it, Josh?


Josh: At what age should you have a will?


Chip Waller: At what age should you have a will? Well, you can't have a will until you're age 18. Your circumstances in life as far as a will is concerned would probably mean is do you own anything? From the time you own anything, well, then you can have a will and designate who you would want to receive your assets. I would say any time after age 18 would be a good time to start thinking about it as far as that's concerned. Also, your estate planning documents, such as a power of attorney, may be very, very helpful, particularly if you're out of town or you want someone else to be able to take care of signing for things, particularly if you have, as far as digital assets now, you have to have particular language and a power of attorney for digital assets. Hopefully I answered that question. When you're age 18.

Josh has another question for me. You're doing good today, Josh.


Josh: Is a video will less valid than a written will?


Chip Waller: Is a video will less valid than a written will? A video will is not valid. This past session in the legislature, willing.com, I believe, sponsored or had legislation passed by both legislatures where you could have an electronic will or have your will signed electronically. However, that was vetoed by the governor. If you just video what you want done with a will, that doesn't work. Now, if you're talking about having whenever you physically sign the will, and you video the execution of it by you and the two witnesses who are present, well, then it doesn't make it any more valid or not valid. But if you simply have a video, and you state even in the presence of two witnesses that this is what you want done with your estate or whatever, that is not considered a valid will.


Furthermore, we have what's called a holographic will. That's where you sit down and you write it out in hand. If the holographic will or a hand-written will is not signed in the presence of two witnesses, which is a requirement under Florida law, it is ineffective. There are some states that do recognize holographic wills, but Florida is not one of those. I don't know quite what is meant by video will, but if it's simply talking into a video and telling what you want done at your death, that isn't going to be sufficient and is not going to be available or not be able to be probated as far as that's concerned.


How are we doing on questions, Josh? Have we got any more coming our way here? That was an interesting one, and certainly timely after this past legislative session. I believe Las Vegas is the one that has now had these wills that can be done with electronic signature and they are videoed as far as or called an online will. Problem in Florida with online, if you don't have online notarization, and this legislation changed what the law has been in Florida for the past 150 years. It may be something in the future, but it certainly has a few kinks to get worked out, one of which is the notarization, remote notarization. Some legislation is going to come in to take care of electronic notarization, since we do recognize electronic signatures, or the Florida statutes recognize electronic signatures.

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Okay, Josh. I guess we're going to hang it up. Again, remember that I'm a Florida lawyer. I only know Florida law. I know where the other 49 states are. I can spell most of them, but I don't know what the law is as far as that's concerned. If you have any questions about Florida law, just give me a call. My name is Roland Waller. It's Chip Waller. Everybody in the IRS knows me as Roland, and everybody else knows me as Chip. You can call me at (727) 847-2288, and I'll be glad to help you out or send you to ... Try and give you somebody. If I don't do it, tell you who to call. Until next month, well, we will see you then.