Last Wills & Testaments
WHAT HAPPENS WHEN THERE IS NO WILL?
If you die without a will – this is called dying “intestate” – your property will be distributed to your heirs according to a formula fixed by law. Your property does not go to the state of Florida unless there are absolutely no heirs at law. In other words, if you fail to make a will, the inheritance statute determines who gets your property. The inheritance statute contains a rigid formula and makes no exception for those in unusual need, or your wishes. Don’t let the state determine the distribution of your assets after death — contact the Wheeler Firm to speak with a family law and estate planning attorney.
When there is no will, the court appoints a personal representative, known or unknown to you, to manage your estate. The cost of probate may be greater than if you had planned your estate with a will, and the administration of your estate may be subject to greater court supervision.
MAY YOU DISPOSE OF YOUR PROPERTY IN ANY WAY YOU WISH BY A WILL?
While any sort of property may be transferred by will, there are some particular interests in property that cannot be willed because the right of the owner terminates automatically upon death, or others have been granted rights in the property by Florida law. Some examples of these types of property rights or interests are:
- Except in very specific circumstances, a homestead. A homestead is defined as the residence and adjoining lands owned by a person who is survived by a spouse or minor child; up to one-half acre within limits of an incorporated city or town, or up to 160 acres outside those limits.
- A life estate: property owned only for the life of the owner.
- Any property owned jointly with another person or persons with the right of survivorship. For example, a tenancy by the entireties, which is limited to joint ownership between a husband and wife, would be a property that automatically passes to the joint owner.
You may not disinherit your spouse without a properly executed nuptial agreement. The law gives a surviving spouse a choice to take either the share provided under the will or a portion of your property determined under Florida’s “elective share” statute. This statute uses a formula to calculate the size of the surviving spouse’s elective share, which includes amounts stemming from your jointly held and trust property, life insurance, and other non-probate assets. Also, if your will was made before the marriage and does not either provide for your spouse or show your intention not to provide for your spouse, then your spouse would receive the same share of your estate as if you had died without a will – at least one-half of your estate – unless provision for the spouse was made or waived in a marital agreement. For more details, contact the estate planning and family law experts at The Wheeler Firm.
HOW LONG IS A WILL GOOD?
It is “good” until it is changed or revoked in the manner required by law. Your will may be changed as often as you desire while you are sane and not under undue influence, duress or fraud — provided it is changed in the legally required manner. Changes in circumstances after the execution of the will, such as tax law amendments, birth of children, deaths, marriage, divorce or even a substantial change in the nature or amount of your assets, may raise questions as to the adequacy of your will. All changes require a careful analysis and reconsideration of all the provisions of your will and may make it advisable to change the will to conform to the new situation.
DOES A WILL INCREASE PROBATE EXPENSES?
No. If there is property to be administered, taxes to be paid, or both, the existence of a will does not increase probate expenses. A will is a crucial aspect of estate planning because it frequently reduces expenses, eliminates uncertainty as to your wishes, and provides a map for the distribution of your assets. If there is real or personal property to be transferred at your death, the probate court will have jurisdiction to ensure that it is transferred properly, either according to your will, or if there is no will, in accordance with the inheritance (“intestacy”) statute. So, even if you have no will, your heirs must go to court to administer your estate, obtain an order determining your legal heirs, or obtain a determination that administration is unnecessary. These procedures are often more expensive than administering your will, since a properly drawn will sets out procedures to simplify the administration process.
IS A TRUST A SUBSTITUTE FOR A WILL?
No, but a trust may be used in addition to a will. This is because a trust can handle only the property that has been put into it. Any property of yours that is not placed in the trust, either during life or at death, escapes the control of the trust. It is the will that controls all property in your name at the time of death — as long as the will is drafted properly. Properly drafted trusts can be helpful to speed administration and save taxes, and are funded during life with the property intended to be transferred by the trust. Often, however, improperly drafted or incorrectly funded or administered trusts can add to the cost of settling estates, instead of lowering it. Furthermore, it is the probate of the will that can clear creditors’ claims, which is not possible with just a trust administration. If you need help properly drafting your will, get in touch with the family law and estate planning attorneys at The Wheeler Firm in Florida.
DO YOU HAVE TO GO TO COURT TO PROBATE A WILL?
No, but documents must be filed with the court to procure a probate order and administer estates. In most counties, neither the estate attorney nor the interested persons ever appear in the courtroom.
WHO SHOULD PREPARE A WILL?
You wouldn’t employ “just anyone” to fill teeth, take out an appendix, or deliver a baby. Except in a dire emergency, such important tasks should not be performed by anyone except a trained professional. The drafting of a will involves professional judgment that can be obtained only by years of training and experience. Only a practicing lawyer can avoid the innumerable pitfalls and advise the course best suited for your individual situation. Contact The Wheeler Firm today!
SOME SUGGESTIONS CONCERNING WILLS
- Marriage does not cancel a will in Florida, but a spouse acquired after the execution of your will may receive the same portion of your estate that he or she would have received had you died without a will (at least one-half).
- If you have moved to Florida from another state, it is wise to have your will reviewed by a Florida lawyer in order to be sure that it is properly executed according to the laws of Florida, that the witnesses are readily available to prove your will in Florida, and that your personal representative is qualified to serve in the state.
- Before your will is effective to dispose of your property, it must be proved in the probate court. If the will is self-proving and otherwise valid, it may be admitted to probate without further proof. If the will is not self-proving, it generally must be proved by the oath of one of the witnesses. A will can be made self-proving either at the time of its execution or later, which saves the time and expense of locating a witness and obtaining the witness’ oath after your death.
- No matter how perfectly a will may be prepared, unless it is properly executed in strict compliance with the laws of Florida, the will may be entirely void. Be sure that you execute your will in the presence of your attorney, who knows exactly how, and in what order, the will should be signed.
- Every person owning property who wishes to exercise control in the disposition of that property after death should have a will, regardless of the value of the property. Of course, the larger the estate, the greater the tax consequences.
WHAT OTHER LEGAL DOCUMENTS SHOULD I HAVE IN MY ESTATE PLAN?
The following additional documents should be considered for signing when you make your will:
- Living Will: Florida statutes now provide for a written declaration by an individual specifying directions as to the use of life-prolonging procedures.
- Power of Attorney: This document can assist in handling your property if you become incapacitated, without having to open a guardianship proceeding in court. This is especially valuable for paying your bills and protecting your assets. A power of attorney is no longer valid or enforceable after your death.
- Healthcare Surrogate: Florida law now allows you to designate a person to make healthcare decisions for you when you may not be able to do so. Included in this important appointment is the power to decide when to withdraw medical procedures.
- Pre-Need Guardian Designation: Florida law allows you to designate a person who could be appointed guardian over you – and/or over your children – should you become incapacitated, or upon your death. If you fail to designate a guardian, the court will do so for you if it becomes necessary.
At The Wheeler Firm, we’re here to help you and your family gain confidence that your wishes will be honored at death. We will help you understand your estate planning and Last Will and Testament options, and assist you in choosing the best path going forward — so you and your family are secured. Reach out to us today to get started, or call us at (850) 613-6923.