By Anthony A. Velardi, Esq.
Estate Planning, Elder Law & Real Estate Attorney
WHERE THERE’S A WILL, THERE’S A WAY.
Often, clients call and tell me they need a Living Will when they really mean a Last Will and Testament. In the end, I am glad they called, and I tell them they actually need both. So, what’s the difference between a Living Will and a Will?
Simply put, a Living Will, as the name implies, pertains to healthcare matters while you’re living, whereas a Last Will and Testament, which is commonly referred to as a Will, applies to matters after you pass away.
In Florida, a Living Will kicks in if you (1) have a terminal condition, (2) have an end-stage condition, or (3) are in a persistent vegetative state and your primary physician and another consulting physician determine that there is no reasonable medical probability of you recovering from such a condition. In this event, your Living Will indicates whether you want life support or to “pull the plug.” A Living Will and a Do Not Resuscitate (DNR) are not the same, and a DNR goes a step further by informing medical personnel not to perform CPR.
In your Living Will, you also indicate the person to carry out your medical wishes, which is referred to as your Healthcare Surrogate. When designating a Healthcare Surrogate, they should be familiar with your medical wishes and able to make decisions under pressure. Someone with a medical background is a big plus but not required. Certain religions, such as Catholicism and Judaism, have specific requirements when it comes to Living Wills.
Some may remember the Terri Schiavo case, which lasted for years in Florida with Terri’s family fighting over whether to keep Terri on life support because Terri did not have a Living Will. If Terri had a Living Will, all the drama and legal battles could have been avoided altogether.
In conjunction with a Living Will, it is also wise to have a Will because a Will indicates your wishes regarding your assets after you pass away. In your Will, you designate who will serve as Personal Representative or Executor of your estate, and your Personal Representative oversees the administration of your estate and ensures your wishes are carried out after you pass away. A Will may also indicate whether you want to be buried or cremated and other preferences such as a funeral or celebration of life. Furthermore, a Will can be used to designate the guardian of a minor child if a parent passes away before the child turns 18, and this helps avoid legal disputes as well.
A recent Florida appellate court case highlights the importance of having a Will. In State v. Estate of Bruening, Kyle Bruening passed away without a Will and had no surviving spouse, no children, no siblings, no parents, no grandparents, no aunts, no uncles, and no first cousins. Kyle’s second cousin, who shared a common great-grandparent, filed a petition with the probate court claiming an interest in Kyle’s estate as a beneficiary along with two other distant cousins. The State of Florida argued that a second cousin does not fall under the definition of an heir per Florida law and that Kyle’s entire estate escheated, or reverted, to the State of Florida. The trial court agreed with Kyle’s second cousin, but the appellate court reversed and held that second cousins who otherwise have no familial relation to the person who passed away do not fall under the definition of an heir per Florida law, thereby resulting in Kyle Bruening’s entire estate escheated, or reverted, to the State of Florida. All of this could have been avoided if Kyle Bruening had a Will, so the moral of the story is please make sure you have a Living Will and a Will.
Anthony A. Velardi, Esq.
AV Law PLLC
Treasure Island, FL 33706
(727) 641-4110
anthony@avlawpllc.com