Ask a Lawyer

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By Pierce Kelley


J.K. of Cedar Key asks, “I don’t have a will, but my children keep telling me I need to get one. I don’t have all that much, just some land, a mobile home, my truck, some guns and a few other things. Do I need a will? And what’s the difference between a will and a living will?”

Dear J.K.;

If you want to decide who is to get whatever you have when you die, then you should have what is called a “Last Will and Testament.” If you die without a Will, the State of Florida has laws which will determine who is to get what. For example, Florida Statute 732.102 provides that if you died leaving a wife and children, your wife would get the first $60,000 and one half of the remainder. Your children would get the other half of what is left over. The law makes provisions for all kinds of situations, including no spouse, no children, no parents and no living brothers or sisters. If all else fails, and there are absolutely NO relatives, the property goes to the State of Florida. Most people want to decide who is to get what when it’s their time to go. Wills aren’t expensive, either, and most lawyers will happily create one for you at a cost of a couple of hundred dollars.

Now, a document called a “Living Will” is a horse of a different color altogether. A “Living Will” is one of several types of documents which are called “Advanced Directives.” It is used if you should ever be in a situation where you are unable to make a decision about what should or should not be done to you concerning medical or health issues. A “Living” Will is a document which comes into play while you are still alive, hence the term “Living.” Most people use this document to state their desire NOT to be kept alive like that unfortunate soul in St. Petersburg who remained on life support for ten years until a Court finally ordered the life support tubes removed, amid much controversy and public outcry.

Another example of an “Advanced Directive” is a “Health Care Designate.” This document is used if you are unable to make a decision about what medical procedures should be performed, but you are not in a vegetative state and you are not on life support systems as in the example above. It would be used if you were unconscious, but not in a coma, for example, and the hospital needed permission to perform a medical procedure and could not proceed without that authorization. If you had executed a “Designation of Health Care Surrogate” form, the person to whom you gave the authority to make medical decisions on your behalf would be able to do so. Without such a form, the hospital would have to wait until you were able to give consent, which could be problematic at times.

Most lawyers who prepare Last Wills and Testaments normally recommend that a person execute a Living Will and Health Care Designation at the same time and, again, it is not an expensive proposition.

J.K., I hope the foregoing answers your question, although you may have received more information than you bargained for. My best advice is to get all three documents as soon as practicable because you never know when you might need one. Any readers with specific legal questions for this “Ask a Lawyer” column are invited to submit those questions to the Editor of this newspaper, who will pass it along to the attorney. If you need a will or advanced directive and you cannot afford an attorney, you can call the closest Legal Services office, which provides free legal assistance to qualified individuals, or call the Florida Bar Referral service at 1-800-342-8011. I wish you good luck in obtaining access to our legal system, no matter what your income and asset level might be.

The foregoing was written by attorney Pierce Kelley, who is a member of the Florida Bar Association. The contents reflect his personal opinions and beliefs.