Common Legal Myths
After 20 years of practice, I have noticed certain common myths and misconceptions about what people can do for a spouse or loved one and what documents permit for this purpose. Here are a few:
- MYTH: I can do whatever I want for my spouse since I am married; I don’t need any documentation to act for my spouse.
TRUTH: Under Florida law, the fact a person is married does not in and of itself provide the authority for one spouse to act for another. Spouses must have durable powers of attorney naming each other to act for them in the event one spouse is unable to act. For example, if one spouse needs to assist the other with applying for government entitlements or obtaining medical consent or treatment, a durable power of attorney, healthcare surrogate designation and a living will are documents each spouse should have for the other. Otherwise, a spouse is severely limited in their ability to act, unless the spouse goes to court and obtains an expensive guardianship. - MYTH: A living will and a living trust are the same document.
TRUTH: A living will, as has been exhaustively discussed by the media during the Schiavo case, deals with end of life issues. Basically, a living will provides written proof of a person’s intent that they do not want extraordinary medical measures taken in the event they either are (a) terminally ill, (b) at the end of a terminal type of condition, and/or (c) in a persistent vegetative state. The Schiavo matter was made difficult because Florida does permit verbal living wills. Obviously, a written living will is better.A living trust is a document which may be utilized to assist in avoiding probate and can help minimize estate and other transfer tax liability at a person’s death. It has nothing to do with end of life issues and should not be confused with a living will.
- MYTH: If I have a will there is no probate.
TRUTH: When a person dies, they may leave their property by either using a will or a revocable trust. If no will or revocable trust is utilized to dispose of property at death, then state law (referred to as intestate succession) determines who receives your property.Under Florida law, if you have a will and a person deceases owning property in their name, there must be a probate. Will means probate. Probate is the process of determining if a will is valid, paying creditors from your assets and then distributing your property to your named beneficiaries or heirs. Using a revocable living trust is a way to avoid probate, because property is actually owned by the trust, rather than by a decedent.By statute, probate fees run approximately 3% of the value of the assets disposed of by a will. For example, if you have assets valuing $300,000.00 (and this is a gross asset figure; you do not subtract debts or mortgages which may be owed at time of death), then the fee to probate is approximately $9,000.00, plus costs.
- MYTH: To obtain government benefits, you must be totally broke and you must sell your home.
TRUTH: False! Under Florida law, you are not required to sell your primary residence, regardless of the value, to obtain certain benefits, including long term care benefits. Your primary residence (as well as other assets) is exempt from unsecured creditors claims up to one-half acre if the property is located within a city, and up to 160 contiguous acres if the property is located in an unincorporated area of the county. For example, if you live in an unincorporated area of a county (i.e., northern St. Johns County, Florida) even though you may have a Jacksonville post office address, as this is St. Johns County, it is not part of the actual City of Jacksonville and you are entitled to 160 acres of land protected from unsecured creditors claims.Other types of property are also permitted and you can still obtain government benefits.
- MYTH: I cannot disinherit any of my children. I must at least leave them at least $1.00.
TRUTH: In Florida, you can disinherit any or all of your children. You do not need to leave them anything. In fact, I am against leaving a child whom you wish to disinherit anything as doing so would make them a “interested person” providing them with rights under Florida law and making it easier for them to contest a will if they are excluded.
If you have any other questions you would like answered, please feel free to contact me as I will be happy to answer any of your questions. Please feel free to contact me directly at 904-268-7227 or by email, rmorgan@fjbd.com.
ROBERT M. MORGAN - BIOGRAPHY
Robert M. Morgan - born Richmond, Virginia, 1959. Partner in Charge of the Estate Planning and Elder Law Department of Ford, Bowlus, Duss, Morgan, Kenney, Safer & Hampton, P.A., Jacksonville, Florida. Undergraduate degree from Arizona State University and Juris Doctor from Mississippi College, with Distinction. Author of numerous articles and seminars on real property, probate and estate planning issues. Member Florida, Tennessee and Jacksonville Bar Associations; served as chairperson of the Probate and Trust Law Section of the Jacksonville Bar, and is an active member of the Elder Law Section of Florida Bar and the AARP Legal Services Network. Member National Academy of Elder Law Attorneys and Academy of Florida Elder Law Attorneys and the Northeast Florida Estate Planning Council and Adjunct Professor of Law, Florida Coastal School of Law. Practice areas include elder law, estate planning and probate, real estate, corporate and business law. Email rmorgan@flfirm.com