If you die without leaving behind a will, you may wonder what happens to your property in Florida. Any time you fail to have a will, or a court determines that your will is incomplete or illegal, Florida has intestate succession laws that will govern who inherits your property. These laws choose different people based on their relationship to you and who survives you after your death. Let’s look at two scenarios to better understand these laws.

Scenario 1: You die leaving behind a spouse, but no children, grandchildren or any other descendants.

This is the easiest intestate succession scenario to deal with, as your surviving spouse will inherit all of your property. If you have surviving parents, your parents do not receive property under Florida law, even though other states have laws that would leave something to your parents.

Scenario 2: You leave no surviving children, parents, or spouse, but do leave siblings and nieces or nephews.

In this scenario, because you have no lineal descendents or spouse, your brothers and sisters stand to inherit all of your property in equal shares. So, if you have two brothers and a sister, each will receive a one-third share of your estate. If one of your parents had been alive at the time of your death, your parents would receive the entire estate, or if both survived, they would each inherent an equal share.

Of course, these are only two of the numerous different types of intestate scenarios possible, so you should talk with your Florida estate planning lawyer for more detailed information.

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

Since her death in May of 2011, the estate of Huguette Clark has gone through an incredible number of twists and turns. The multimillionaire heiress of a former senator and wealthy industrialist, Ms. Clark was 104 when she died. In the last 20 years of her life, her nurse had been one of her few constant companions and received much of the woman’s wealth. Her family is now alleging that many of these gifts were due to fraud on the part of the nurse as well as Ms. Clark’s attorney and accountant.

Ms. Hadassah Peri, the private registered nurse who had taken care of Ms. Clark in her declining years, received over 25 million from her while she lived. Additionally, Ms. Clarke also left the nurse more than 30 million in her last will and testament. The same will left nothing to Ms. Clark’s family, the closest relatives of which are half grand-nephews and half grand-nieces. Attorneys for the family argued that the will was made under duress on the part of the nurse and others around Ms. Clark, and that a previous will that had left the nurse only 5 million should apply. This previous will also leaves money to the family that had otherwise been completely left out.

Though the most recent photograph of Ms. Clark was taken in the 1930s, her life drew increased attention in late 2009 as people became more interested in her story. She only married once, and divorced shortly thereafter. She also left no children, surviving siblings or other close family members to whom she could leave her fortune.

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

For far too many people, their knowledge of estate planning comes from what they see on television or what they hear from friends or relatives. Because of this, it’s very common to come across myths and misperceptions about estate planning laws. While these myths may be widely held, if they prevent you from taking adequate estate planning steps they can be detrimental to you and your legacy.

Myth 1: Your will is read before your family before it takes effect.

Reality: This myth largely comes from fiction, movies and television. The moment when a deceased relative’s attorney sits down before the family and reads the terms of the will aloud, though often dramatic, is purely a fictitious creation. No state requires that you read your will aloud before it takes effect. You must, however, have your will submitted to a court so the court can determine if it meets the legal requirements.

Myth 2: Only rich people need an estate plan.

Reality: This is one of the more damaging estate planning myths. Though wealthy people typically have more options available to them when creating an estate plan, everyone can benefit by having some type of estate plan. Whether it is a simple will or an advance medical directive, every adult should create an estate plan as soon as possible. If you’re not sure where to begin, you should start by talking to an estate planning attorney today.

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

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.

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.