The Legal Office offers the following estate planning services: (click here for Readiness Contact Information)

If you need a will, complete the attached Will Worksheet* and return it to the Legal Office. While there, ask them for guidance on the type(s) of POAs you should maintain in your FRP folder. To expedite the process please read the information, below, to familiarize yourself with legal terms, and with the different services that the Legal Office provides. Please allow 2 drill weekends for the Legal Office to prepare your documents.

A. THE BASIC WILL:

When you die, your debts must be paid from your property (your estate). The remainder of your estate is then distributed to the proper people.

A will is a document that directs how and to whom some or all of your estate will be distributed after your death. It also gives you the opportunity to plan for the care of your children should you die before they reach maturity. You can designate whom you want to administer your will (known as a personal representative) and can avoid the requirement that this person post a bond with the court to insure proper performance of those duties.

If you die without a will, your estate will be distributed among your relatives according to the laws of the state of your legal residency. These laws typically require your estate to be divided among your closest relatives, and can result in distributions to people you would not want to receive your property. If you die with a will, your personal representative or other interested person will have to submit it to the Probate Court. The Court will determine the will’s validity and supervise your property’s disposition in accordance with the will.

Not all your property becomes part of your estate. Some of your property will be distributed to others according to the terms of the property and will not be governed by your will (e.g., insurance policies, joint checking accounts, homesteads, etc.).

What should go into your will?: The Will Worksheet* will walk you through the steps to create your will. Important items in a will include:

Personal Representative: the person authorized to administer and settle your estate. This person is also known as the “Fiduciary” or “Executor/Executrix.” This is, in most cases, a close personal friend or relative who would be able to carry out your wishes. Ordinarily, an alternate is chosen in case your first choice is unavailable or unable to accept the responsibility.

Beneficiaries: the person(s) who receives some of your estate. Most married couples leave their entire estates to one another and rely on the surviving spouse to provide for the minor children. This avoids the costs and delays involved in establishing a guardian of the property of the children. Such a guardian must be appointed by a judge and is supervised by the court in how the property is used.

If both parents die simultaneously, they usually leave everything to their children as alternate beneficiaries. The Legal Office recommends that you name another person to inherit from you in case you and your immediate family die in a single disaster or accident.

Trustee: If a beneficiary is a minor, you can set out in your will how the bequest is to be paid. It may, at the election of the personal representative, be paid to: the child, a guardian, or a custodian under the Uniform Gifts to Minors Act. Alternatively, it may be held in trust by the personal representative or a trustee until the child reaches the age of majority.

Specific Bequests: If you want someone to get a specific piece of property, you can state so in your will. For example, you can state who will get a certain necklace or your bass boat. For residents of Florida, you can also state in your will that you want to dispose of tangible items of personal property on a separate sheet of paper. Tangible personal property does not include any real estate, intangible property such as cash, stocks and bonds, or items used in a trade or business. All items of tangible personal property not listed in this paper will be disposed of as you state in your will.

This paper does not have to follow any special form. You only need to name the beneficiary, describe the property, and sign and date the paper. Your signature does not need to be notarized or witnessed . We recommend you start the paper with words such as:

"It is my intent that the following personal property be disposed
of as follows:"

You should then specifically describe the property and identify the intended beneficiary, and sign and date the paper. It should be placed with the will to make it easier to locate. If you change your mind, you can destroy this paper without disturbing your will. You can execute a new paper without executing a new will.

Disinheritance: In most states you can disinherit anyone in your family. For example, you can disinherit your children because they are financially well off and another person has greater need of your assistance. However, you must specifically name any child you want to disinherit. If you have a child and do not mention him or her in the will, by law that child can receive a forced share of your estate. Also, while you can disinherit your spouse, your spouse has the option to take an elective share of your property (unless waived by a prenuptial or postnuptial agreement). In Florida, the spouse has the right to take whatever share you designate under the will, or 30% of your estate after payment of debts, but before taxes and expenses of administration.

Guardian: One of the more important considerations in your will may be the nomination of a person to serve as Guardian for your minor children. Such nomination is important if the child's other parent is not alive or willing to accept the responsibility. In Florida, the civil court has final say as to who raises a child without living parents, but a nomination in your will expresses your desire and will be considered by the judge.

It is wise to discuss this nomination with the person(s) you select to be sure they are willing to undertake this significant responsibility. Again, an alternate is often chosen in the event your primary choice is unavailable or unable to accept the responsibility.

Legal Office Limitations: Due to limited resources, we are unable to prepare wills with extensive specific bequests, some types of trusts, and wills for estates that may incur estate tax liability. If you have an estate worth $600,000 or more, you should consult a private attorney specializing in tax, and trusts and estates. He or she can probably save your estate money by taking advantage of tax-saving measures.

Execution of the Will: For a will to be valid, it must be properly executed. If you do not return to the legal office to execute your will within 90 days after it is prepared, it will be disposed of. You will have to submit another questionnaire and see an attorney to prepare another will. Once your Will is complete, maintain it in a safe place and make sure to list its location on the Document Locator Form in your FRP folder.

Top of Page

B. POWER OF ATTORNEY (POA)

Powers of attorney ("POA") designate another individual to act on your behalf as your agent or "attorney-in-fact". A POA can be extremely important to permit another to act for you while deployed. However, a POA can be dangerous because it legally authorizes another to act in your stead. Also, unless it contains a revocation date, a POA is extremely difficult to revoke. The only sure way to terminate it is to tear it up (and all copies). Therefore, you should first consult your Legal Assistance Officer for preparation, and for advice on storage. In most cases, your POA should be kept as a tab in your FRP folder; however, there are instances in which a POA should be kept on file elsewhere (for example, the 125th Finance Office requires a special POA to be on file in their office if a Guard member desires his/her spouse or representative to have access to pay information. The POA should specifically list all types of access granted; e.g., the authority to discuss pay issues with a representative from the Finance Office; the right to make changes to deductions, etc.)

If you expect to rely on a POA for a particular purpose, such as access to your bank, it is a good idea to check with them now on their policy for accepting POA's. No one is required to honor a POA, and many banks have policies on the type of POA they will accept.

There are two categories of POA:

General Power of Attorney: This is a very broad grant of authority, and should be selected with extreme caution and only where a special POA would not accomplish the same purpose. It basically authorizes another person to do any legal act which you might do for yourself.

A general POA can be revoked, but unless the Power of Attorney contains a specific date after which it will become null and void without any action on your part, revocation is uncertain and difficult. If you give a general POA, it should be limited in duration for only the period necessary, and generally for no longer than one year.

Special Power of Attorney: This is a grant of authority in favor of another individual to act on your behalf but only concerning specific matters or acts described in the document itself. It is of limited authority, reduces the risks of a general POA, and should be selected whenever it can fulfill your requirements.

An example of a special POA is one that grants to another authority to enroll your child in school and authorize necessary medical attention. If you are a single parent, or dual-career military couple, you should have such a POA executed and ready in case of deployment.

Top of Page

C. LIVING WILL

This is a document in which you state your desires regarding termination of your life. You can state that you do not want “life-prolonging procedures” if you are terminally ill and your attending physician and another physician determine there is no hope for your recovery and the proposed medical measure will only artificially prolong the process of dying. You also have the option of determining whether you authorize your physician to withhold food and water. Many states, including Florida, recognize living wills made in other states. However, if you move to another state, you should check with the nearest base legal office to ensure your living will is valid in your new state.

This is a very serious document so, before you make any decisions, you may wish to consult your family and/or members of your religious denomination. You should include a copy of this document in your medical records in your FRP folder.

Top of Page

D. DESIGNATION OF HEALTH CARE SURROGATE:

This is a written document in which you authorize another person to make your health care decisions for you, but only in the event you are incapacitated and cannot make these decisions for yourself. You can have this document in addition to a living will. If you do not have a living will, you can leave it up to your surrogate to make life termination decisions for you, or you can direct your surrogate to give you the maximum treatment available. The Legal Office can provide you with the appropriate document drafted in accordance with the laws of the state in which you are a legal resident.

Top of Page

E. OTHER HELPFUL LEGAL INFORMATION:

Soldiers and Sailors Civil Relief Act (SSCRA)
http://www.military.com/Resources/ResourceFileView/Active_Benefits_FAQ.htm

Service members are expected to take care of their private financial obligations and avoid bringing discredit to the military service. However, a Guardsman ordered to Federal active military service may find it difficult to continue to bear the financial obligations he or she incurred while a civilian.

The SSCRA is a Federal law designed to postpone or suspend existing civil obligations of individuals called to active duty service. The basic idea is to avoid penalizing a person because he/she enters the military service, and to allow the military member to devote full attention to duty. Its protection begins when you receive orders to report for Federal active duty and ends shortly after separation from active duty service.

The SSCRA provides a means to protect yourself against prospective civil default judgments, and to cause default judgments entered against you while on active duty to be reopened. If you have a civil default judgement entered against you while on active duty, you must direct the Court's attention to the fact that you are in active military service and that the SSCRA applies. It is important for you to do this either personally or by LETTER OF INSTRUCTIONS. Please refer to the Legal Office for more information on the protections provided by the SSCRA.

*You will need Acrobat Reader to view the above pdf files. Click here to download Acrobat from Adobe.com.

Top of Page