A codicil is a written document used by attorneys and lay people to amend an existing will. By executing a codicil, you do not have to redraft your entire will. Instead, your codicil amends the existing terms of your will. Although using codicils made sense to people before the inventions of word processing software and computers, they may not make much sense now.

Before we relied on computers and word processors, we had to handwrite our wills. Before carbon copies and copy machines, we had to draft several copies of wills by hand. After the invention of copiers and carbon copy paper, drafting multiple copies of an individual’s will became easier, but to change an existing will, an attorney or someone else had to redraft the entire will. As you can see, amending a will by adding a clause or by codicil was an easier task to accomplish than redrafting your entire will. However, computers and word processors changed everything for estate planning lawyers. Now, many estate planning lawyers prefer drafting a new will instead of amending an existing will by codicil. Because your state’s law probably requires you to comply with the same statutory formalities to draft a new will as it requires to amend an existing will by codicil, drafting a codicil does not eliminate the requirements to have witnesses sign your codicil.

By drafting a new will to replace your existing will instead of changing it by codicil, an attorney can make sure there are no conflicts. Furthermore, if you have global changes, your attorney will most likely draft a new will.

Robert J. Kulas, P.A. Attorneys at Law is a member of the American Academy of Estate Planning Attorneys.

State laws vary as to when custodians must file a decedent’s will with their local probate courts. Most states allow testators or will drafters to file their wills with their local probate courts before they die. This way, will drafters can avoid potential confusion as to where they stored their wills.

Although most state laws do not require you to probate your will while you are still alive, doing so may be a prudent course of action. By filing your will with the county clerk’s office, you do not have to worry about safeguarding your will or remembering where you stored it. After you file your will, nothing occurs until your death. After your death, someone admits it to probate by notifying the clerk’s office of your death. If you later decide to revoke your existing will and create a new one, you must be sure you file your new will with the county clerk. If you fail to file the new will, make sure your new will properly revokes your existing will. You can speak with our office regarding the steps you should take in creating a new will, revoking your last will and filing a new will.

Robert J. Kulas, P.A. Attorneys at Law is a member of the American Academy of Estate Planning Attorneys.

After creating your power of attorney you need to make sure the document is both kept safely and it is given to the people who need it. Your estate planning lawyer can provide you with advice about how to handle and store your important legal documents after creating them.

General Safekeeping: At the very least, both you and your agent should have original copies of whatever power of attorney you create. If you create multiple powers and have multiple agents, each should receive the document that grants them authority. If you name alternate agents, it’s a good idea to give those agents a copy of the power of attorney so they can use it if needed. Otherwise, you should keep the document in a secure location, such as a home safe, safety deposit box or stored at your attorney’s office.

Financial Powers: When you grant financial powers of attorney it’s important to make sure the third-parties with whom your agent interacts will recognize their authority. In general, third-parties must accept powers of attorney that are legally executed, though you may need to be prepared with copies in order to ensure a smooth acceptance of your agent’s authority.

Health Care Powers: Similar to financial powers, a health care power of attorney will need to be used with medical care providers, such as doctors, hospitals or extended care facilities. You may need to provide your healthcare providers with copies of the document so you don’t have to worry about a conflict arising.

Robert J. Kulas, P.A. Attorneys at Law is a member of the American Academy of Estate Planning Attorneys.

A conservatorship arises when an adult is unable to care for his or herself. In such a situation, a judge has to step in to appoint a conservator, a person who is legally responsible for ensuring the incapacitated person’s needs are met. The laws of conservatorships differ depending on where you live, but let’s take a look at some common aspects.

Types: Conservatorships come in different varieties based on the kind of powers the conservator has. A conservatorship of the person allows the conservator to care for the daily needs of the incapacitated adult, providing living arrangements, health care, housekeeping and all the other duties required for daily life. A conservator of the estate, on the other hand, is a person who looks after the adult’s financial concerns in order to ensure bills are paid and property is adequately cared for.

Some states also differentiate conservatorships into general and limited forms. A general conservator has the ability to manage all aspects of the adult’s life and are often used when the care of an elderly person is required, or for a seriously ill or injured younger person. A limited conservatorship is typically used when an adult with disabilities is cared for. The conservator has some powers, but the adult also maintains some control over his or her own affairs.

Process: Only a court can appoint a conservator. A hearing must be held where all interested parties are heard from. After this the court will determine if a conservator ship is needed and appoint one or more people to serve in the position. The court will also determine what powers the conservator has and how long the position lasts.

Robert J. Kulas, P.A. Attorneys at Law is a member of the American Academy of Estate Planning Attorneys.

The U.S. Social Security Administration administers the Social Security Disability Insurance program and it also administers the Supplement Security Income program. Although these programs are similar, they are also vastly different. The Supplemental Security Income (SSI) program is means-based and limited to disabled, blind, or elderly individuals with very limited assets. SSI benefits help low-income elderly, blind, or disabled individuals. However, the Social Security Disability Insurance (SSDI) program is not income-based. SSDI recipients must establish a sufficient amount of work credits to qualify for benefits. Typically, recipients must have worked at least two years to claim benefits. In contrast, SSI helps low-income elderly, blind or disabled individuals without sufficient work earnings to qualify for SSDI benefits.

SSDI generally allows recipients to claim larger monetary monthly disability benefits than SSI recipients may claim. However, SSI recipients may also receive health care benefits, including assistance through the federal Medicaid program jointly administered with states. Another important distinction is that SSDI recipients are eligible for survivors’ benefits, while SSI recipients are not. Thus, if you are a child of a deceased parent entitled to SSDI benefits, you may be able to receive survivors’ benefits by applying for them through the U.S. Social Security Administration. If you are a child of a deceased parent previously receiving SSI benefits, you will not be able to apply for and receive SSI survivors’ benefits.

Robert J. Kulas, P.A. Attorneys at Law is a member of the American Academy of Estate Planning Attorneys.

Pretermitted children are those unintentionally omitted from a parent’s will. Most states enacted special statutes protecting the inheritance rights of pretermitted children.

The Florida Legislature enacted the pretermitted child statute allowing a pretermitted child to receive a mandatory share to avoid unintentional disinheritance. Specifically, Section 732.302 applies to pretermitted children. This Section states the following:

“When a testator omits to provide by will for any of his or her children born or adopted after making the will and the child has not received a part of the testator’s property equivalent to a child’s part by way of advancement, the child shall receive a share of the estate equal in value to that which the child would have received if the testator had died intestate, unless: (1) It appears from the will that the omission was intentional; or (2) The testator had one or more children when the will was executed and devised substantially all the estate to the other parent of the pretermitted child and that other parent survived the testator and is entitled to take under the will.”

Because of the limited statutory language set forth in the Florida Probate Code, you should speak with an attorney regarding your rights as a pretermitted child.

Robert J. Kulas, P.A. Attorneys at Law is a member of the American Academy of Estate Planning Attorneys.

In the last blog, we discussed the definition of pretermitted children and covered some examples. A pretermitted child is a child unintentionally omitted from a parent’s will because of a parent’s unawareness of the child’s existence. A pretermitted child may be the biological child of a parent unaware of their birth. It may also be the adopted child of a parent. Generally, with adopted parents, it involves the case of a parent who attempted to legally adopt the child before executing their will or it may be that the adoptive parent was not legally able to adopt the child until they had already executed their will.

In addition to a biological child who was born before a parent drafted his or her will, a pretermitted child may be an adopted child. In many cases, a pretermitted adopted child’s adoption goes through after the parent drafts their will. Thus, a child unintentionally left out of their parent’s will receives a share of the estate based on the intestacy statute.

Robert J. Kulas, P.A. Attorneys at Law is a member of the American Academy of Estate Planning Attorneys.

In this three-part blog series, we will discuss the Florida Statutes’ treatment of pretermitted children. We will cover Title XLII, Estates and Trusts, and Section 732 of the 2011 Florida Statutes. This section addresses intestate succession and wills.

A pretermitted child is one unintentionally left out of their parent’s will. A pretermitted child is not one a parent intentionally omitted or disinherited from their will. It does not include a child the parent knew existed but chose not to include in his or her will and it does not include a child born after a parent executed his or her will.

Specifically, a pretermitted child is one that was accidentally or unintentionally omitted from a parent’s will because that parent was unaware of the child’s existence. A pretermitted child is one left out of their parent’s will because the parent never knew they existed. For example, it may be that the father wrote his will before he knew of the child’s existence. It may have been that her father never married her mother and legitimized her. To help children who were unintentionally or mistakenly left out of a parent’s will, most jurisdictions passed mandatory succession statutes allowing them to claim an inheritance regardless.

Robert J. Kulas, P.A. Attorneys at Law is a member of the American Academy of Estate Planning Attorneys.

As the final blog in the three-part series covering the rights that adopted children have to inherit from their adoptive parents, we will cover the specific intestacy laws governing the order of succession between family members of adopted children. An adopted child typically receives an equal share of his parent’s intestate estate as his or her other siblings. To further elaborate, we will consider a hypothetical scenario in which a parent of an adopted child dies intestate or without a Will. If the adoptive parent leaves behind a surviving spouse, the Florida’s elective share laws will govern the rights of this parent’s children and surviving spouse. If the surviving spouse is the biological or adoptive parent of all of the intestate decedent’s children, the surviving spouse receives all of the decedent’s intestate estate pursuant to Florida law.

However, if the decedent was unmarried, the adopted child receives the same share as his or her siblings. Thus, if the adoptive parent leaves behind an adopted child and other biological children but no living spouse, all of the children are legally entitled to equal shares of their probate estate pursuant to Florida’s intestacy laws. If he or she dies leaving behind a surviving spouse and adopted and non-adoptive children who are not children of the surviving spouse, the surviving spouse receives half of the estate, while all of the children share equally in his or her estate.

Robert J. Kulas, P.A. Attorneys at Law is a member of the American Academy of Estate Planning Attorneys.

Continuing our discussion of the legal inheritance rights that adoptive children have to inherit from their adoptive parents, we’ll look at the specifics of the Florida Revised Statutes. An adopted child is the adopting parent’s lineal descendant, according to Florida law.

However, an adopted child is not a lineal descendant of his or her biological parents, according to Florida law. This means that if you are an adopted child, the Florida Revised Statutes considers you a blood relative or lineal descendant of your adoptive parents. Thus, if your adoptive parents die intestate or without a will, you may inherit from them in many cases. As such, an adopted child who survives his adoptive parents can receive property according to the terms of their wills, but if they die without first creating a will or without a valid will, he or she can rely on the state’s intestacy succession laws.

Florida law does not consider an adopted child as the lineal descendant of his or her biological parents. Thus, if you were adopted, and your biological parents die intestate, you have no legal inheritance rights. However, if you were adopted and your biological parents died testate or with a valid will, you may have legal inheritance rights to inherit under the terms of the will. This is more common today with technological advances allowing adoptive children and biological parents to find one another through electronic internet databases and search groups.

Robert J. Kulas, P.A. Attorneys at Law is a member of the American Academy of Estate Planning Attorneys.