Five Legal Forms To Protect Your Family Two Part Series ---------------------------- Steve Overton March 2 Part One March 3 Part Two

TAMPA - If you should die without having a will, the state may decide who will get your estate - and who will raise your children.

Do you want the state in charge of distributing your estate? Or a judge to decide who takes care of your children?

If not, you need a will.

Anyone, whether single or married, young or old, and especially with children, has the chance before they die to make sure things are taken care of the way he or she wants.

At least three legal documents providing specific instructions - a will, a health care power of attorney and a living will - are needed by everyone, experts say. Other important legal tools for families include revocable living trusts, powers of attorney and prenuptial agreements.

While important for traditional homes, these same documents are vital to unmarried or gay couples who would not otherwise have the right to inherit property or speak for the other in a crisis.

Every individual, experts say, should keep an updated list of insurance policies, company benefits, the names of personal accountants and lawyers, and any significant creditors and debtors.

Regardless of whether he or she does anything else, however, it is vital to have a will.

``If you do not have a will, you do not have a say in how your property is disposed of,'' said Andrew Lubrano, a partner in the Tampa law firm Hill, Ward & Henderson. ``Florida law will decide.''

And without a will naming a guardian for your children, the state will do it for you.

``A couple who has small children, no matter what the size of their estate, ought to have a will if for no other reason than to designate a guardian if both are hit by a bus,'' he said.

Even couples without children need wills.

For example, if both were to die of injuries in an accident, but one lingers a few days longer than the other, the state would distribute all of the couple's assets to the relatives of the last survivor, whether that is the couple's wish or not.

Two other essential documents are a living will and a health care power of attorney. Most estate planners recommend having both because they can work together.

A living will makes clear one's desire to not be kept alive through drastic measures when there's no hope of survival. Such wills generally assuage health care providers who must worry about consent and other liability issues.

The health care power of attorney designates a surrogate, usually a spouse or partner, to exercise the wishes of the person who is ill.

Lubrano would have both.

``You are creating less uncertainty,'' he said. ``A living will says if the doctor says pull the plug, you pull the plug. A health care power of attorney says I give you the power to pull the plug.''

Another potentially useful tool for families is a revocable living trust.

Trusts are flexible; wills are not, Lubrano said.

A living trust is a way to protect one's assets - at least for a while - from Uncle Sam, and a way you can continue to exercise control of your estate. It is used most often by wealthy people with significant business and personal assets.

So living trusts are not for everybody.

For example, such a trust would be overkill for young couples whose finances change regularly, said Peter Kelly, a partner at Shackleford Farrior Stallings & Evans in Tampa.

A working couple with elementary school aged children does not often need such a trust, Kelly said.

On the other hand, an elderly person might choose to establish such a trust to avoid significant probate costs.

Kelly said he would prepare a revocable trust for an 84-year-old woman who owns her home and has $100,000 invested in a certificate of deposit. Her finances are set and relatively simple.

``She could probably be set up for $500 and save her heirs $3,000 in probate costs,'' he said.

Even families with a small estate but carrying substantial life insurance benefits could make use of a trust.

By setting up a trust at a bank and designating it as the beneficiary of any insurance payouts, the family could be protected from creditors and possibly estate taxes, Kelly said.

Another potentially useful legal document is a power of attorney, which would allow one person to handle financial matters for another in an emergency.

But some lawyers caution against them.

Unlike a will, most powers of attorney become valid at the time they are signed and delivered. And they are not necessary when you have a revocable living trust.

Also, husbands and wives with bank accounts already have the power to write checks and make financial decisions for the other, Kelly said.

Arguably, a prenuptial agreement is important for families, especially between spouses with significant assets who have children from previous marriages.

Those children have competing interests with new spouses and younger siblings, whether they fight or not.

``It gives you clarity and definition in terms of how property should be divided and to whom it should go, and you don't have a judge telling you what to do,'' Lubrano said.

But it's a difficult argument for lawyers to make, he admits.

Talk of prenups is not romantic. It's almost like jinxing the future.

``I feel like in today's age it's just something you have to ask,'' he said.

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