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.

State laws establish the rights that intestate heirs have when their relatives or spouses die without first creating a Will or without creating a valid Will. Adopted children and adoptive parents may be subject to special state statutes since there are no biological blood relations between them. Typically, state statutes establish an order of priority or succession of an intestate decedent’s heirs. An intestate decedent is one who died without first creating a Will or without creating a valid Will. An example of a Will created invalidly created is one signed without the presence of any witnesses.

In most states, a Will that does not conform to the state probate laws governing testamentary instruments fails as a valid instrument that can govern a decedent’s rights to bequeath property through his or her Will. If a court rejects a Will as invalid, the decedent is subject to his or her state’s order of succession or intestacy laws. This three-part blog series explains the inheritance rights that you have as adoptees or as parents of adopted children. It does not cover the legal inheritance rights that adopted children of same-sex or opposite-sex unmarried partners may have. An adopted child in this scenario may be the biological child of one domestic partner but an adopted child of the other. Furthermore, it will not cover the legal rights that unmarried same-sex or opposite-sex unmarried parents have to inherit from their biological or adoptive children.

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

According to Florida law, nursing homes, hospices, hospitals and some insurance organizations are legally required to provide consumers with a written summary of their legal rights to create advance health care directives.

A living will is an instrument you create while you are still alive and well enough to make those decisions. You may want to create one in addition to drafting a document appointing your health care surrogate.

Once you create a living will, you should give a copy of it to the person that you appoint as your health care surrogate if you appointed one. The surrogate has the legal ability to make decisions on your behalf regarding any medical treatments if you become incapable of making them. If you want to designate a health care surrogate, you should do that in writing. Like a living will, you must sign your surrogate document in front of two witnesses, one of which is not a spouse or a relative. Your surrogate is not able to serve as a witness to your document.

It is your legal responsibility to notify your physicians of your living will. Once you give your physician a copy of it, he must place it in your medical file for future reference.

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

A Living Will is a written document that allows you to make advance decisions regarding life-sustaining or prolonging medical treatments. A valid living will must contain certain information as outlined in Section 765.303 of the Florida Statutes. Also known as Health Care Advance Directives, Living Wills are completely different from legal wills.

A legal will allows a person to decide who inherits his personal and real property. A living will or health care advance directive, on the other hand, is a written document that allows a person to make decisions regarding his own health upon physical or mental incapacity.

A valid living will must be in writing and signed by the person creating it in front of at least two witnesses. At least one of the witnesses must be unrelated to the person creating it and must not be a spouse. If the person creating a living will is physically unable to sign his document, he may direct another individual to sign it on his behalf. The third party signing a living will on the drafter’s behalf must sign it for the drafter in his physical presence. Finally, to create a living will, an individual must be mentally competent at the time he signs it.

Note that a living will created in another state is valid in Florida if it was valid in the other state. In other words, similar to a legal will, a living will created outside of Florida is enforceable in Florida if it complies with the other state’s laws.

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

In most states, including Florida, individuals can appoint third parties to make decisions for them if they become mentally incapacitated or otherwise too ill to make decisions regarding their medical care.

In Florida, residents can use several different types of forms or documents that allow others to help them make decisions for them. Before using any of these forms, you should contact our office or another experienced estate planning attorney to help you determine whether or not they would be suitable for your individual needs.

You may use a Health Care Surrogate Designation form to appoint a mentally competent adult to make decisions on your behalf regarding medical treatments and health care decisions if you become mentally unable to make them. If you become well, your designation form is no longer valid, since you can make your own medical decisions. A Health Care Surrogate Designation document is similar to a living will but serves different purposes. In the next two blogs, we will cover the definitions of both and the differences between them.

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

When you die without a will in Florida, you are subject to the state’s intestacy laws. If you are subject to Florida’s intestacy laws, the order of priority that your heirs have to your probate assets are determined by statute. If you die without any living descendants but leave behind a surviving spouse, your surviving spouse has a legal right to receive your entire probate estate.

Under Florida law, living descendants include your children, their children (your grandchildren) and descendants of their children. If you die with a surviving spouse and surviving descendants, their inheritances depend on whether your living descendants are related to you and your surviving spouse. Your surviving spouse can receive your entire estate if this is the case, and your surviving spouse has no other surviving descendants. The remaining intestacy rules depend on whether your surviving spouse has issue of her own and whether you leave behind surviving children who are not your surviving spouse’s children. If you were unmarried at the time of your death, your surviving parents receive your probate estate if you leave behind no living descendants. If children and grandchildren survive you, they will receive your assets in shares determined by Florida’s intestacy laws. If you are unmarried, and your parents predeceased you, your siblings receive your probate estate in shares determined by Florida law. 

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

If you die without a validly written will in Florida, your assets are subject to the state’s intestacy laws. An intestate is someone who dies without a valid will. If you die intestate, your assets escheat to the state only if you die without any surviving heirs. Rarely does this occur, and in most cases, an intestate’s property passes to his living heirs in a predetermined order. Your heirs are your living blood relatives, living descendants or your surviving spouse.

If you die with a validly created will, your heirs and beneficiaries will receive their shares of your estate according to your will in most cases. However, Florida law allows your surviving spouse and your surviving dependents to elect a 30 percent share of your probate assets. If your surviving spouse elects the 30 percent share of your elective estate, he or she must give up your testamentary disposition. In other words, if you die and your wife survives you, your wife can elect her elective share pursuant to Florida law or her disposition as set forth in your will. As such, Florida law prohibits you from totally disinheriting your surviving dependent children and your spouse in most circumstances. Your family’s elective share includes probate and non-probate property. Your surviving spouse and children may further have rights to a family allowance and exempt homestead property.

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

The Florida Probate Code allows you to create a valid will if you are legally competent. A resident is legally competent if he is of sound mind and is 18 or older. If you are under 18 years old, you can make a will if you were legally emancipated through marriage or court order. The will must be in writing and created without undue influence, duress or proof of mental incompetence. Furthermore, you must sign your will in front of two witnesses, and they must sign their signatures in front of you. You and your witnesses must sign your will at the end of your testamentary instructions and bequests. Generally, your witnesses must be impartial, unrelated and stand to gain nothing from your will. In other words, your witnesses should not be potential beneficiaries to your will.

You must also have directed your witnesses to sign your will so that you and your witnesses have actual knowledge – not just constructive knowledge – that the document signed is your last will and testament. If you are physically unable to sign your will but possess the mental capacity to sign your will, you can direct someone else to sign your will, as long as that person is an impartial party, at least 18 years old and mentally competent. The third party who signs your will if you are physically unable to do so must sign your will in front of you and your witnesses.

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

Section 732.901 of the Florida Probate Code codifies the legal requirements for custodians who locate a decedent’s will. This section of the Florida Probate Code requires the custodian who locates a testator’s will to file it within 10 days after he learns of the testator’s death. A custodian must deposit a decedent’s will with the local circuit  court in the  county of the decedent’s death or residence. The custodian must provide the probate court with the testator’s Social Security number and his approximate date of death. Failure of a custodian to file or deposit the testator’s will with a local probate court can lead to an award of attorney’s fees, court costs and damages against him for failing to comply with the Florida Probate Code.

If entrusted with the safekeeping of a Florida resident’s will, you are the legal custodian required to submit the will into probate. A Florida probate court can require you to testify under oath of the authenticity of a decedent’s will. If you provide the court with a false statement, you are guilty of perjury if you knowingly withheld information or knowingly provided false information regarding a document’s authenticity. If you are also the personal representative or executor of a decedent’s will, you will have further legal obligations to pay creditors and to administer the decedent’s estate. As a custodian, once you submit the decedent’s will, the Florida probate court will attempt to locate witnesses who witnessed the decedent’s signing of his will, unless the will is self-proving.

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