What’s The Difference Between A Living Will and A Last Will and Testament?
Video Summary
What is the difference between a living will and a last will and testament? A living will is a term that I usually use in describing a dying declaration, and that is set forth in the Florida statues that sets forth when life support can be discontinued. You sign the living will or the dying declaration that says that there are three circumstances where you’re directing and authorizing your healthcare surrogate who you designate to discontinue life support. One is if you have a terminal condition. This means you’re laying there and you’re really not conscious, and the doctors don’t think you’re going to regain your consciousness. Besides that, you have a terminal condition. That’s whenever the healthcare surrogate would be authorized to discontinue life support.
The second one is if you have an end stage condition. That’s whenever the doctors or whatever can examine you, look into your eyes, or check on your vitals and determine that your system is shutting down and that you’re not going to survive very long anyway whether you’re on a respirator or life support. The third one, which is the one that most people are concerned about, is in the event that they’re basically brain dead and they don’t have any EEG brain waves. There was a case several years ago by the name of Schiavo where she expressed this verbally but did not put it in writing. There was years of litigation and millions of dollars in attorney fees spent over whether or not to discontinue life support. Simply executing this will authorize your healthcare surrogate or whomever you designate to discontinue life support if you are basically not able to, brain dead, as far as that’s concerned.
Whereas that’s what your living will is, then your last will and testament, that deals with your money. That takes effect before you die. The living will is what transpires while you’re still on this planet, although not in very good shape. The last will and testament does not become an operative until such time as you die, and then that sets forth what your plan is as to whom you want to receive any assets that are in your name alone. It’s really important that you do estate planning where you check with an attorney or check with our office, set up an appointment, and discuss how you have your assets titled. You can have this great will that says, “I leave X number of dollars to my sister, and I leave X number of dollars to my brother, and I leave all the rest of it to my three grandchildren,” and set forth all of that. Then you’ve set up all your accounts so that they’re basically joint accounts, and there is no money there to take care of these provisions. The will doesn’t really express or show how you want your assets distributed.
You need to look at all of your assets and then determine whether or not you want them to be titled in a certain way so they automatically go to a particular beneficiary. Then you can recite that, the same operative provisions in your will that says, “Well, this is what I’ve done, but this is what I really mean. I want them to receive these joint assets,” or talk about the overall estate plan so that you don’t have any duplication in the event there are assets and you’ve already provided for them with a joint account.
That is your last will and testament. The last will and testament only controls assets that are in your individual name and do not have a designated beneficiary or co-owner. Wills do have to be probated. Sometimes folks think that because you have a will, you don’t have to probate those. Hopefully that’s the distinction that you have between a living will and a last will and testament. Give me a call if you’d like to do some estate planning. My phone number is 727-847-2288.
- Published in Videos
Hurricane Irma and fallen trees.
Video Summary
Hurricane Irma and trees. Well, we’re getting calls about trees that have fallen, either that your tree has fallen on your neighbor’s property, or your neighbor’s tree has fallen on your property, and the question is: who’s responsible for the damage, or the cleanup of the debris of a tree that’s fallen on your property?
Well, the answer is, is that you are responsible for taking care of the cleanup, as far as a tree falling on your property, whether it’s your tree, or your neighbor’s tree, since it is caused by an act of God. Your neighbor is not negligent as a result of hurricane Irma, or possibly hurricane Marie, or any other hurricane or natural disaster coming through, just a small tornado or any other storms that comes through. The damage is caused as a result of an act of nature, or an act of God, and therefore they are not negligent and not responsible for the damage that the tree has caused to your property, and you’re not responsible for any damage that your tree fell on your neighbor’s property.
So, the unfortunate part of it is, is if the tree falls on your property, or even hangs over your property line, looks like it’s about to fall on some of your property, well, you are stuck with having to clean the thing up, particularly with these giant oak trees that can run into thousands of dollars with tree surgeons and hauling out great big oak trees, and having to use certain care so it doesn’t damage any more property. So the cleanup of debris is a particular problem, but your neighbor is not liable for it.
Now, if the tree falls on your house, or damages your property, well then what? Well, you need to call your insurance company, and unfortunately this is gonna be under your policy, most of them have a hurricane deductible of anywhere from three to five … Well, depending on, look at your policy, and that there’s a deductible before they would pick up the damage. So, unless it’s catastrophic your deductible is probably gonna be more than what it’s gonna cost to fix the damage or to remove the tree, depending on the extent of the damage.
There is one exception to the tree falling on your property, your neighbor’s tree; that is if he was negligent, as far ar maintaining the tree. If it was a rotted tree, it’s been sitting there, and you talked to him about it or warned him about it, and said he needs to take care of it, and then if he was negligent and maintained the tree, well then you could possibly have some cause of action against him for these damages.
I have been contacted in the past about a rotted tree on the neighbor’s property and the concern, and I suggested to the person who contacted me that they need to send a letter notifying the neighbor that he would be liable or responsible if that rotted tree fell or caused damaged to your property. So that’s the exception to the not being liable if it’s an act of God; if the neighbor was negligent or you put him on notice that he needed to attend to the matter.
Also, a lot of times, not with hurricanes necessarily but maybe a result of a leaning tree, is that you have the right to trim trees, vertical, if they hang over your property line, where you have the right to trim the tree as of whatever is hanging over your property line. But hopefully you didn’t have too much damage, and unfortunately the cost of removing some of these huge oak trees is very expensive, but you’re probably not going to be able to hold your neighbor responsible, since it was an act of God.
So hopefully you’re safe. And if you have any questions, I don’t purport to be an insurance expert, but that’s just a little quip as far as trees and hurricane Irma, and fortunately we dodged hurricane Marie it looks like. My phone number’s 727-847-2288.
- Published in Real Estate, Videos
When Is The Best Time to Buy or Sell Your Home?
Video Summary
The best time to buy or sell your home? Well, usually this is driven more by your circumstances, rather than your trying to time the market, as far as that’s concerned. Rather than saying, “When is the best time?” I don’t know, because it depends on your circumstances. If you have time to research it, I suggest that you start looking at property, even before you actually decide, in the areas that you think that you might like, or explore that. So, the more properties you look at, and come up with the values, well, the more informed you’ll be. So whenever you do find a property that you like, then you can then know what the value is. So, property you like, and also know that you’re getting good value for the property. So, the more you work at it, the better it is.
As far as selling your property, it used to be that during the winter months, whenever you had more people here, from up north, that it might be a good time, or better time, to sell the property. I don’t know that that really holds true, or not. I think whether or not, you probably do have more perspective buyers here, during the winter, than you do during the summer. So, as far as the best time’s concerned, well, that probably is when you need a house, I guess, is the best time to buy. Buy one, and selling it is whenever you have to move, or your family’s expanded, or whatever, and you have the need to move. Or, if your spouse just decides that they’d like to downsize, up-size, or just relocate, or for whatever reason, I guess that’s probably the best time to go ahead and start looking for property to purchase, and location is key as to that concern.
Some of the consideration is whether it’s in a flood zone. If you have children, the school district and what schools they’ll be going to, is critical. Of course, with charter schools now, well, that may eliminate that, but you still have the how close are you to the school, for transportation purposes. How close are you to where you work? Unless you’re retired. If you’re retired, well, how close are you to what you need, such as doctors, hospitals, and things such as that, as far as your location’s concerned. Also, whether the property’s in a flood zone, because the cost of flood insurance could drive up the cost of your home.
So, basically, it’s a subjective test. I don’t think there’s any bright line test, as far as the best time to buy or sell your home. So, if you have any questions, well, give me a call. It’s 727-847-2288. Thank you.
- Published in Real Estate, Videos
Lunch With A Lawyer – Sep 21, 2017
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What If A Person Dies With A Will And Both Executors Are Deceased?
Video Summary
What happens if a person dies with a will and both the executors are deceased? In that instance, the beneficiaries, the majority of the beneficiaries need to agree on who should be the personal representative. If that is not possible, then any one of the beneficiaries or any person that’s qualified to be a personal representative can file a petition to be appointed the personal representative and give notice to all the other interested parties. And if no one objects after they give formal notice which I believe is about 20 days, well then the court would then appoint whoever has petitioned for it.
If there is objection, well the court would then have a hearing to determine who would be appointed as the personal representative. So that’s how you resolve it whenever both the designated personal representatives are deceased. If we have an estate where the personal representatives do not act, whether they’re deceased or just not interested or don’t want to pay the attorney or anyone else, you can petition the court to have a curator appointed until such time as a personal representative is appointed.
The curator’s job is to maintain the estate and status quo by publishing the notice to creditors and administering the estate until a personal representative or may complete the administration of the estate whenever a personal representative has not been petitioned to be appointed.
If you have a problem with probating an estate and you’ve got deceased personal representatives or executors, well give me a call and we’ll be glad to help you out. Call at 727-847-2288.