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Archive for June, 2011

NEW LEGISLATION: PART II

Monday, June 27th, 2011 by

            For those of you who are married and have not had your own Will or Living Trust prepared, the Florida Legislature has just changed your “Will”.  The bill was sent to the Governor for his signature on June 13th and was signed in June 21st

            Previously, your government-made “default will” provided that if you are survived by a spouse and children of that spouse, the surviving spouse would receive the first $60,000 of your estate and then one-half (½) of the remaining estate.  The other half (½) would be divided equally among your children (or their descendants).  That now has been changed.  In the traditional marriage situation, where all of the decedent’s surviving children are also the children of the surviving spouse, the surviving spouse now receives one hundred percent (100%) of your estate (providing the surviving spouse has no children or grandchildren [descendants] from another relationship). 

            This change in the “default will” does bring the state’s version of estate planning more in line with the typical choices of married couples.  Most married couples do choose to leave everything to their surviving spouse. 

            In cases of second marriages and/or blended families, the State’s “default will” remains unchanged.  Fifty percent (50%) of the estate goes to the surviving spouse and the other fifty percent (50%) is divided equally among the decedent’s lineal descendants (children/grandchildren).  This new law does not have any effect on Florida’s current elective share, homestead, exempt property or family allowance provisions.   

            So, if you like the Will the Florida legislature has prepared for you, stand pat.  If you’d like to make your own choices and/or learn how the laws mentioned in the previous paragraph affect your “default will”, call us…we can help. 

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MOVIE REVIEW: “LIFE AS WE KNOW IT” (Bad Estate Planning Makes for an Awful Film)

Thursday, June 16th, 2011 by

This surely predictable attempt at romantic comedy is awkwardly wrapped in a tragic incident. The thin plot involves a married couple, Allison and Peter, trying to set up each of their best friends, Holly and Messer, on a blind date. It proves to be a disaster. Over time, Allison and Peter have a baby; Holly and Messer dutifully attend birthday parties and remain antagonistic toward each other. Suddenly, Peter and Allison are killed in an automobile accident and, …surprise…, they have named Holly and Messer as co-guardians for their child. The remainder of the movie involves Holly and Messer trying to care for the baby and ending up falling in love. A predictable, and unbelievable, affair.

The best aspect of the film for me, is that it provides an opportunity to point out the estate planning errors of Allison and Peter (the married couple). Although they had a lawyer and a Will naming co-guardians, their first mistake was that they did not prepare emergency temporary guardianship documents which would have enabled Holly and Messer to pick up the baby the night of the accident. Instead, the baby was placed in the care of child protective services and it was several agonizing and scary days of working through red tape before the screen couple was able to retrieve the child. Depending upon the age of the child, even a few days in foster care can be quite shocking.

The child was with a babysitter on the night of the accident, but the babysitter was a minor. We generally recommend that someone within a five to ten minute drive of your home be appointed emergency temporary guardian of your minor children. In the event that such a tragedy occurs, that person can keep the child until the permanent guardians can arrive. The babysitter must be aware of the names of these emergency guardians so that the police can notify them to come pick up the children before they are taken away to foster care. We believe this to be an extremely important and overlooked part of estate planning.

The next mistake Allison and Peter made was to select two single people who hated each other and had no parental experience as co-guardians. This was compounded by the fact that neither Holly nor Messer was informed prior to the couple’s death that they had been named guardians. It is unlikely that real life would work out as smoothly as the scripted movie. Considering who should raise your children in the event of a tragedy requires substantial thought as well as making the people you choose aware of the possible responsibility. Their agreement to serve should be discussed, agreed upon and secured at the time of the preparation of the estate planning documents.

Finally, Allison and Peter did not leave sufficient funds to raise the child. Apparently, there was no life insurance or other savings, just enough insurance to cover the mortgage on a large house. This led to financial difficulties for Holly and Messer. It is your responsibility to provide the financial resources for raising your child. That should not be the responsibility of the guardians.

The movie is not an enjoyable experience, but it does offer a platform for discussing how to come to terms with the tragedy of a young couple dying and leaving their only child without a temporary guardian or confirmed permanent guardian, and for how to make sure their child will be financially secure upon their death.

Please call my office if any of these issues apply to you or anyone you know. Properly naming guardians is an extremely important part of being a parent.

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