Video Summary

What happens to personal property if there is no will?  I am assuming that the question presupposes or supposes that the person has passed away and has personal property.

And so what usually happens is, whoever gets to the personal property first, if it is untitled, is the one that takes advantage of it and does whatever they want to with it.

What should happen is that an estate proceeding should be established, although rarely it is, and the children or heirs of the decedent agree as to who is going to be the executor or personal representative of the estate.  The personal representative then would inventory and list all the personal property and then sell it.

Now there is an exemption against the claims of creditors for personal property in a probate proceeding so that it goes to the children as far as that is concerned.

So my experience has been that if their only asset that the decedent has is personal property, usually the relatives or the caregiver or whomever is close to the decedent, takes care of disposing of the property and sometimes that creates some problems with the other heirs or relatives whenever they do not share it.  But rarely is an estate opened unless there is titled personal property other than an automobile.

So if you have any questions about an estate, give me a call at 727-847-2288.

Video Summary

If I have assets in more than one state do I need more than one will?  The answer to that is no, no, no.  You need to have one will and it says that I devise all my real and personal property wherever it is situated to, and then you say who you leave it to.  And so if the will is valid in the state where you execute it, then you can then use it to transfer or have the property probated in another state.  So you have one will and the other states will honor that will if it’s honored in the state where it’s executed.

There is one exception is if you have what they call a holographic will which is a hand-written will, some states allow that to be entered.  Florida requires all wills have at least two witnesses.  So the will must have two witnesses to be recognized by Florida.  But you only have one will and that covers all your asset no matter where they’re situated.

Now you run into a problem if you have property outside the United States, particularly in Europe or some of the other countries and that we have the English common law and these other states are code states, like in France they have the Napoleonic code, they might have forced inheritance agreements.  And so you need to have that addressed.  And then whenever people from England or Europe come to see me here in Florida, I prepare a will for U.S. assets only that complies with Florida law because it is a nightmare trying to understand what the laws are of a foreign country in order to have them apply to the Florida assets.  And then you have other problems as far as community property states which we have seven of those are all west of the Mississippi, and that can affect who inherits your property and who’s entitled to the property.  I’m not a community property expert but I know just enough to know that I don’t know.

So but if you’re a Florida resident you only need to have one will for wherever your assets are situated throughout the United States.  And if you have property in a foreign country I suggest that we have an attorney or a notaire in that particular country prepare an inheritance agreement so you know who will receive it whenever you pass away.

So if you have any questions about this, give me a call at 727-847-2288.

Video Summary

Can I omit a beneficiary from my will? Yes you may omit anyone you like from your will, except for a spouse. If you omit a spouse from your will, well they have a right to take what they call an elective share and they are entitled to 30 percent of whatever you have under your will as well as trusts. So you don’t want to omit your spouse unless you a prenuptial agreement or a marital settlement agreement wherein the spouse is waiving the interest in the property.

Another time that you have a problem is as far as omitting or conveying property to whomever you would like is if you have your homestead property and at the time you pass away you are married or have minor children, the Florida statute and Florida constitution restrict you who can leave it to.  If you are survived by a spouse well then you can only leave it to the spouse; you can’t provide that she has a life estate and it goes to somebody else after her death; you can leave it outright to her. So it’s an invalid devise, so with homestead property.

If you are survived by minor children then you cannot devise the property to anyone.  If you have a spouse also she’s entitled to a life estate or she makes an election to a one-half interest and the children are entitled to the other one-half. And that is all the children, not just the minor children.

So usually you can omit any beneficiary, children, whomever you want, adult children, that is, whoever you want in your will.  However, if you are survived by a spouse you can’t omit your spouse unless you have a prenuptial agreement without her having rights to take her share of the estate. So if you would like to prepare a will I’d be happy to meet with you.

My phone number is 727-847-2288.

Video Summary

What’s the difference between a will and a living will?  A will says that I devise and leave everything that I own to my beloved spouse or names a beneficiary and deals with the leaving behind of your property, leaving your property to whoever you would like whenever you pass away.  A living will is a dying declaration that says that you do not want your life prolonged artificially.

Florida statutes have set forth three areas, three time periods in which you can direct and authorize life support to be discontinued: one is if you have an end-stage condition, which is really when you’re in the dying process; two is if you have a terminal condition; and three is if you have a permanent vegetative state.  All of these circumstances are whenever you’re unconscious.  And therefore you have to leave directions behind and the medical community must make the determination that you have any one of these three conditions.  And then they turn to whoever you designate in your living will to make the decision to terminate life support.  And then you’re on your own and usually when you remove the ventilators, well then you pass away without any assistance.

So the will leaves behind your property to whoever you designate.  A living will is whenever you’re in the twilight time of your life and you’re authorizing that the plug be disconnected or that you do not want life-saving or mechanical ventilators to sustain your life mechanically.  I think it’s ‘artificially’ continue your life.

So if you have any questions about a will or a living will, well, give me a call at 727-847-2288.  Thank you.

Video Summary

Good afternoon.  I’m Tom Mitchell, one of the partners here at Waller & Mitchell in New Port Richey.  And I wanted to talk with you today for a few minutes about what you need to do before you come in to make out your will.  Making out a will is very important and it’s part of your overall estate plan, so you need to go back over all of your various accounts, bank accounts, brokerage accounts, other personal property that you might have, jewelry, cars, get all that information together so that you know what you have.  While you’re doing that, it’s very important to check to see how the asset is titled.  If you have a beneficiary or it’s joint with some family member, you need to understand that that asset is going to be passed to that person by virtue of the titling.

So if you have in your will that you want your estate divided equally among your three children, but you’ve already put one child on most of the accounts, that one child is going to get most of the accounts and it’s not going to go equally to your three children.  So it’s very important to know what those account statements say as to the titling.  Bring all that information in.  We’ll go over it with you and see what you need to do to make your estate pass the way you want it to, not just your estate through your will, but your overall estate.

This is Tom Mitchell from Waller & Mitchell.  Our telephone number is 727-847-2288.  We’re located in New Port Richey.  Have a good day.