DURABLE POWER OF ATTORNEY
Durable Power of Attorney This is an extremely important document that will allow your family members to administer your assets without complicated incapacity court proceedings. Basically by issuing this document you authorize a third person to administer your assets and it will be valid notwithstanding the fact that you become incapacitated to manage your property. If you don’t have this document, and become incapacitated, the only way you will have to administer or sell your assets will be through a guardian, that will be named after the court determines that you are incapacitated. The incapacity proceedings are costly and will have to comply with the requirements of the law. A Durable Power of Attorney is a simple way to avoid complicated court proceedings.
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LAST WILL AND TESTAMENT
Last Will and Testament This is a document with certain formalities of the law that will devise your assets according to your wishes, and has to be drafted in compliance with applicable Florida Statutes. One example of the limitations established by Florida law when drafting a last will and testament is that if you are married without a pre-nuptial agreement establishing other terms, your spouse has certain legal rights by law to inherit an approximate amount equivalent of 30% of you assets. If you prepare a will that devises less than this amount, your spouse could file an action in court to request his/her elective share, an the will could be declared null andvoid or it could be reformed in order to devise to the spouse the portion that by law him or her would be entitled to. In Puerto Rico, the applicable law is different and if you have real estate assets in said jurisdiction your last will and testament has to comply with applicable law to inheritance that basically states hat your children will have to receive at least two thirds of your assets. This principle only applies to real estate assets located in Puerto Rico, and if you have assets in Florida and Puerto Rico you should have an attorney admitted in both jurisdictions prepare the will to avoid legal complications. The document has to be notarized in front of two witnesses and cannot devise homestead under certain circumstances. You will also name a personal representative who will be in charge of administering your assets until they are divided among the heirs.
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The best way to protect your family and your loved ones is by preparing the legal documents that will determine what will happen to your assets if you die, or if you get incapacitated. This area of the law has its complexities and you should seek legal advice as to the right way to devise your assets, especially if you are married or have children from prior marriages. The basic estate planning should consist of three fundamental documents: last will and testament, durable power of attorney and living will.