It is not uncommon for a person to call my office after a loved one has died and ask if I have the loved one's original Last Will and Testament in my file. The answer is usually, "No." It is not my practice to retain client's original documents (and I think a majority of attorneys would say the same). I always provide clients with the originals and one set of copies to take with them, and if they want .pdf copies, we can provide that, too.
Losing the original will can be very costly to family members because the procedure to establish a lost will in a probate action can be complicated and time consuming. This problem may not be an issue any longer with U.S. Will Registry offering access to a national database to trace information regarding the location and custodian of a person's last will. This database does not store copies of the Wills, but information as to its location. To check out more information about the national will registry, go to www.WillsUS.com.
What are the basic estate planning documents that everyone should have?
Did you know that there are basic estate planning documents that everyone should have? For some the process is more complicated. The more assets you have, the more complicated your estate planning may be. But everyone - young adults who have just turned (18) eighteen, older adults who are ninety-eight, and everyone in between – should have, at least, the basic documents in place. So, what are the basic estate planning documents that everyone should have?
First, a Last Will and Testament – simply put, you can think of the Last Will (not the same as a “living will”) as a letter to the judge. When you die, the Will is presented to the probate court and it instructs the court who should be the executor (or personal representative – means the same thing) of your estate. This person administers the estate, gathers all the assets, pays off all the creditors, and distributes the assets to your beneficiaries. The Will also instructs the Court who you want to have your assets – i.e., your beneficiaries. The Will only applies to assets that are solely in your name at death, such as a bank account, your home, or some other asset in your name only. If you own assets jointly with someone, or have beneficiary designations on the asset (such as an IRA or life insurance), the asset will not go through probate and the Will is not applicable to those assets. If you do not have a Will, the state of Florida (or whatever state you live in upon your death) has a statute that spells out who is entitled to your assets upon your death.
Second, a Durable Power of Attorney – where the Will takes over at death, the Durable Power of Attorney (DPOA) works while you are alive. By signing a DPOA, you are appointing someone to act as your agent to handle your financial affairs. Your agent essentially steps into your shoes and, financially, can do anything you can do. In Florida, if you signed your DPOA after October 1, 2011, then your agent has immediate ability to step into your shoes, regardless of your incapacity. If you have a DPOA that was signed before October 1, 2011, it is “grandfathered in” and should be valid (however, it is a good idea to have a knowledgeable estate planning attorney review the DPOA to make sure that it allows for all the powers you need your agent to be able to do).
Third, a Living Will and Health Care Surrogate Designation – often times, these two documents are combined into one. The Living Will states that you do not want to be kept alive by artificial means if you are in an end state condition, terminal or persistent vegetative state. The Health Care Surrogate Designation allows you to appoint someone to make health care decisions for you in the event that you are unable to do so yourself.
These “basic” documents are important, no matter what age you are, because you never know when something could happen that could render you incapacitated or dead. Anyone who is an adult should have these documents in place so that, in the event something happens, someone is appointed who can make decisions for that adult. Otherwise you may be looking at an expensive guardianship proceeding.
If you have questions about issues pertaining to estate planning, or simply obtaining a durable power of attorney, living will and health care surrogate for your child, please contact the Law Offices of Laurie E. Ohall, P.A. at 813.438.8503.