What Is A Will?

A will is a set of written instructions for the distribution of your property when you die. It may also include instructions regarding the handling of your remains although this is not required. During your lifetime, a will does nothing. Upon your death, a copy of your will is filed with the local court and probate proceedings are started, if necessary. Your will names your Personal Representative. If you have minor beneficiaries, disabled beneficiaries, a taxable estate, or certain other situations, then your will may also include a trust naming a trustee for the management of the property for the benefit of those named.

Florida Statute section 731.201(39) defines a will as

an instrument, including a codicil, executed by a person in the manner prescribed by this code, which disposes of the person’s property on or after his or her death and includes an instrument which merely appoints a personal representative or revokes or revises another will.

You can’t get much more basic than that.

Copyright Notice: All Rights Reserved Harry Thomas Hackney, P.A. 2007

Do I Need A Will?

This is probably the most frequently asked question for any estate-planning attorney. Anyone with any property at all, whether real or personal, or with children ought to have a will. Even a person who has nothing may be instantly worth a large sum of money at death, if they are killed through someone else’s negligence or are well insured. For a divorced person with minor children, a will eliminates arguments over who will manage any assets or money left to the children (e.g., an ex-spouse). If you do not have a will, then the state decides who gets your property. In addition, the court will decide who will be your Personal Representative and it may be necessary for that Personal Representative to obtain a bond at the expense of the estate. If you prepare a will, then you can direct that the bond be waived.

Copyright Notice: All Rights Reserved Harry Thomas Hackney, P.A.

Estate Planning For the Average American

This is the first post in a series that will explain some of the basics of estate planning and basic estate planning documents.  Many people put off estate planning because they associate it with their own death or they think it is too expensive, but estate planning isn’t just about the distribution of your assets after you are gone. It also isn’t just for the wealthy. In fact, it may be more important for the middle class because there won’t be enough money to correct a failure to plan after you are gone. It is cheaper to do it right the first time. Proper estate planning also takes into account how you will be taken care of if you become disabled. It also considers how to protect your assets for your own use and your hopes, dreams, and desires for your loved ones whether family, friends, or charities. Your estate plan will be built on a firm foundation by first considering your needs, then the needs of your family, ways to protect your estate, ways to grow your estate, and, finally, ways to minimize estate taxes, if applicable. Less than two percent (2%) of estates are subject to estate taxes.

Once upon a time, I might have said that you didn’t need an estate plan unless you had assets, property, or children. However, I have run into some situations that have convinced me that just about everybody needs an estate plan. It is possible for someone who never had any assets to have a large estate at death. How does this happen? A young father or mother could be killed in an accident with a well insured Coca-cola truck whose driver ran a stop light. Suddenly the not wealthy young father or mother has a substantial claim and a large estate. If the decedent was happily married to the other parent of the children, there may not be any problems. However, I have seen many situations like this where the couple was estranged. In the absence of a will, this often causes problems. On at least one occasion, I encountered a family where four of the five surviving “adult” children were mentally handicapped. The fifth was not much better. Their mother left a mobile home on some land and no will. This caused considerable problems. \

The Terry Schiavo tragedy is another example. If she and her husband had done any estate planning, chances are that they would have received Living Wills. There then would have been no doubt as to Ms. Schiavo’s wishes one way or the other. Many years of expensive litigation might have been avoided or shortened.. So now I think most people could benefit from estate planning.

Copyright Notice: All Rights Reserved Harry Thomas Hackney, P.A. 2007

Beware of the Roommate!

It is that time of year again when many young people return to college.  Many others may be doubling up to save on the exorbitant rents that seem to be in effect these days.  I was reminded of the dormitory woes of my stylist’s child while getting my haircut.  A client also called recently because his son was being hounded by a collection agency for unpaid rent. No one is immune even Tasha had a tale about a roommate stiffing her in college.

Most leases provide that the co-tenants are jointly and severally liable.  That means that the landlord can pursue either or both of the tenants.  Furthermore, the landlord can collect all of his damages from one of the co-tenants or an unequal portion from each.  For example, he can get three-quarters of his losses from one and one-quarter from the other.  In this case, the boy who moved first left behind some furniture and abandoned property.  The client’s child did not feel like cleaning up after his roommate and left it there when he left.  Even though the abandoned property did not belong to the client’s child, the landlord can collect the cost of clean up from the client’s child.  Likewise, the landlord can collect from either co-tenant for any physical damage to the property regardless of who caused the damage.

You must also be cautious of joint liability for utilities, phone bills, cable TV, cable TV equipment and the like.  Invariably, it is the roommate who liked to chat via telephone with his cousin in Tokyo while watching pay per view and who always left the lights on who moves out first.  The remaining roommate can be left with the inflated bills if they are in joint names.

If you are going to rent an apartment with someone, then you may want to make sure that you can afford the rent if the roommate breaches the lease and moves early.  Otherwise, you may be forced to move early and pay for the roommate’s default too.  These days you do not have to get a landline telephone and can use your cell phone for calls.  Cable TV may not be avoidable and without a landline you may need it for high speed internet access. However, you might want to avoid access to pay per view if you can and get the most basic package.  The idea is to avoid any situation where a roommate can run up the bills and stick you with them. 

You should investigate potential roommates as best you can.  The fact that you know someone or went to high school with them is no protection though.  Unfortunately, many a friendship has been ruined because of one friend breaching a lease early and sticking the other with the bills. Good luck!

Copyright Notice:  All Rights Reserved Harry Thomas Hackney, P.A. 2007

The Myth of the Three Day Contract Rescission

For my first blog post, I’ll address the pervasive myth that you always have the right to back out of a contract within three days after you have signed it.  This myth probably has its roots in Florida Statute section 501.025, which allows a buyer to cancel a home solicitation sale on or before midnight of the third day after the sale.  A home solicitation sale imeans “a sale, lease, or rental of consumer goods or services with a purchase price in excess of $25.00 away from the seller’s business place whether in person or via telephone, except for sales made at a fair or commercial exhibit or pursuant to a specific request from the buyer.  This provides a safety valve for those situations where you just can’t seem to get rid of that pesky door to door vacuum salesman without signing a contract.

You may be able to cancel or rescind a contract in other situations such as where you’ve been defrauded or where specific regulations require it; e.g., some home refinancings. However, there is not an automatic right to cancel or rescind every contract.  The bottom line is that you must read and understand a contract before you’ve signed it and the goods or services change hands, because once you’ve signed it chances are you’re stuck with it. If you’re concerned about a particular situation, then please consult a lawyer in your area.

Copyright Notice:  All Rights Reserved Harry Thomas Hackney, P.A. 2007