Thanks for your question. Since I am an attorney, I cannot ethically give you specific legal advice on your situation, since you are not my client, but I can only provide you with general information that you may find helpful. The best advice that I can recommend to you is to contact a local elder care attorney that can work with you on your unique situation.
Your situation is not that uncommon, and while it isn’t always easy to acknowledge the facts, but it is important for you (and other's in the same situation) to understand that you are free to do with your estate plan as you see fit.
I would encourage you to spend time with a local attorney to draft and execute your Will. In some states, the programs that are sold for drafting Wills are not legally valid (you can check the outside of the box and they may have the disclaimer — its’ a classic case of “Let the Buyer Beware”). Generally, if you sit down with a Word processor to outline your thoughts as to what you have and what you want to do with your possessions, it is much more effective as a “thinking tool” to help you prepare to meet with an attorney who can properly draft a Will for you. Most estate planning attorneys also have an intake form that will also help flag any issues that need to be addressed in drafting a Will (such as any special needs beneficiaries, persons who may contest the Will, etc.). Also, while computer programs may be sufficient, they ultimately rely on your best judgment, not that of a professional. So if there is a question to be contested, by your children for example, it will go to a probate court, and your assets could be depleted in the effort, or your children could get a share based on your state's intestate succession laws.
But another important reason to use an attorney to help you with your Will, is that you do want your Will to be defended should there be a challenge to your wishes after you are gone. In every state, there are formalities that must be observed in the execution of the documents to make the Will valid, such as the number of independent witnesses, testing of the testator to ensure legal competency to execute a will (no fraud, duress, insanity, etc.), and having a self-proving affidavit properly executed and notarized. For instance, in Florida, the signature of the Testator must be witnessed by two independent persons in the presence of the Testator and each other, as well as the Testator should witness the signature of the two witnesses. Simple mistakes of not following the proper formalities in the execution of the Will may make the instrument vulnerable to attack after you are gone, and the Court may set aside the Will as being invalid.
Generally speaking, an individual may choose to disinherit (“pretermite”) any or all children from benefiting under a Will. You should consult an attorney about your state's particular laws regarding estates to be sure there aren't any additional requirements though. An additional consideration is if you become incompetent to manage your own affairs as you get older, someone is going to have to manage them for you. This can be achieved in a variety of ways, such as a Durable
Power of Attorney
.
If you want your kids out of it, you may have to set up a trust and choose a fiduciary to manage your bills, affairs etc. This again suggests the need to consult an attorney.
In addition to your Will, there are a couple of other documents that you may wish to discuss with your attorney — such as a Durable Power of Attorney, a Designation of a Pre-Need Guardianship, Living Will (or Designation of Health Care Surrogate) with HIPAA authorization. You should be able to work with a Florida licensed attorney to review your specific situation and draft/execute the appropriate documents for you for a very reasonable fee.
Best of luck,
Shawn C. Newman, Esq.
Attorney At Law
1881 NE 26th Street, Suite 212E
Wilton Manors, FL 33305
(877) 552-9385
[email protected]
.
