Last Will and Testaments, Powers of Attorney, Probate, and Guardianships in the State of Florida

By: Alejandro R. Lopez, Esq.

How is the distribution of properties of a person who has died in Florida take place?

In two ways:

1. The Florida Probate Code determines how to proceed. This Code is a series of statutes which show who are the heirs and how they inherit, or

2. Through a Last Will and Testament. A person can change the way in which Florida law disposes of his/her properties by writing and executing a Last Will and Testament.

If I do not have a Last Will and Testament and I die, do all my properties automatically pass to the State?

No. This is a fallacy which, unfortunately, people still believe for some reason. If a person dies without a Last Will and Testament the difference is that the State of Florida determines how the properties of the deceased are transferred and who are the heirs. If there are no living heirs whatsoever, it is the only time when the properties of the deceased pass to the State.

If I sign a letter, where I explain to whom I want my properties to go to in case I die, is that sufficient in the State of Florida?

No. A Last Will and Testament in Florida, to be valid, must be in writing (it cannot be oral), must be signed by the person who is making it (the Testator), and whenever possible, notarized, and VERY IMPORTANT, must have the signatures (and if possible the addresses and phone numbers) of  TWO witnesses who must be both present at the time the Testator (maker of the Last Will and Testament) signs it.

Must the Last Will and Testament be registered with the Court, or any other government agency?

No. The original Last Will and Testament must be conserved in a safe place, and the Testator must tell the person who is designated or called  the “Personal Representative” (sometimes called the Executor or Executrix) the location of the Last Will and Testament and, possibly, provide a copy of the Last Will and Testament to the Personal Representative. Now, when the Testator dies, the original Last Will and Testament must be registered and filed with the Circuit Court’s Probate Division Clerk of Court where the Testator had his/her domicile in Florida within 10 days from the date of death.

What are the reasons someone would want to have a Last Will and Testament?

To name a “Personal Representative” (instead of having the Court choose an unknown, or some other person the Testator did not want),

To disclose in which parts, and which portions, of the person’s properties would pass to whom and in what form (instead of allowing the State of Florida to dictate the terms instead of the Testator),

To specify how the Testator wishes his/her body to be disposed (burial, cremation, etc.)

Who is the “Personal Representative” in a Probate?

A Personal Representative is a person who administers the properties and issues and disposes of the properties of, and resolves the debts of, a person who has died. Once more, this is the person that in some places is called the “Executor” or “Executrix”.

What is Probate?

A Probate is a case which is opened in Court when someone dies, with or without a Last Will or Testament, to receive authority from the Court so that said person, in life, manage and administer the properties, debts, lawsuits, etc., of the deceased person, paying creditors, transferring properties to heirs and beneficiaries, suing in the name of the deceased person, etc.

Wouldn’t it be better just to have a Power of Attorney and, in that way, eliminate all the complexities of a Probate case?

The Power of Attorney is a document which, as it says, allows one person to give another (temporarily or permanently) certain powers. It must disclose the powers which are being provided or transferred in detail and must be signed by the grantor and two witnesses, BUT, the power of attorney is without effect once the grantor of the powers dies.  The Last Will and Testament survives the deceased and must be administered/managed.

What is a Guardianship?

A Florida Guardianship is when a case is opened in Court to assign to a person who is still alive a “Guardian” , who is an individual who will be in charge of, and will be responsible for, an incapacitated person and/or  his/her properties, or of a minor child  and/or of the properties of that minor child. Guardianships are complex cases. The Guardian must provide accountings and reports to the Court, in addition to medical reports of the person under Guardianship.

Which would be, then, some of the documents to protect the rights of a person, and to insure that the person’s wishes are fulfilled, in life and after death?

. A Last Will and Testament,

. A Power of Attorney,

.A Declaration Naming Preneed Guardian for a Minor,

.A Declaration Naming Preneed Guardian for a Declarant,

.A Designation of Health Care Surrogate, and

.A Living Will.

What is a Living Will?

It is a document signed by the person who wishes to have it, plus two witnesses. It specifies the wishes of the person, as well as whom that person designates and authorizes to make decisions for him/her if he or she has a terminal illness and/or falls in a vegetative state in the future or a coma (for instance, what to do with the person, what medical treatments to provide the person, etc.).

This is what caused problems some time back in Florida with the case of Mrs. Terri Schiavo. She suffered a massive stroke and fell in a vegetative state. Her husband wanted to disconnect her from life sustaining equipment which kept her alive under a comatose state. Her parents did not want to disconnect her. Therefore, her husband and her parents ended up in Court litigation between 1998 and 2005. Florida’s governor became involved in the case, as well as special interest groups, as well as the U.S. federal government, etc., etc., with a devastating and sad situation arising for the relatives. If Mrs. Schiavo would have had a valid Living Will , such litigation and agony between the relatives could have been avoided or, at least, minimized.

If you believe that you, a friend, or a relative, need a Last Will and Testament, Power of Attorney, Probate case in Court, or any of the other documents mentioned here, please contact our Firm for a consultation. It will be our pleasure to help.


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