What is a Will?
A will is a written legal document which sets forth the Testator’s intentions at the time of his or her death, including the disposition of property at death. The laws of each state set formal requirements for a legal will.
- The person who is making the Will is called the Testator, and he or she must be at least 18 years old.
- The Testator must be of sound mind at the time he or she is executing sign the Will
- The Testator’s Will must be written.
- The Will must be witnessed and notarized in the special manner provided by law for Wills.
- It is necessary to follow exactly the formalities required for the execution of a will.
- To be effective, your Will must be proved in and allowed by the probate court.
No Will becomes final until the death of the Testator, and it may be changed or added to by the Testator by drafting a new will or by a “codicil,” which is simply an addition or amendment executed with the same formalities of a Will. The terms of a Will cannot be changed by writing something in or crossing something out after the will is executed. In fact, writing on the will after its execution may invalidate part of the will or all of it.
What can be accomplished by a Will?
- You decide who gets your property instead of the law making the choice for you.
- You may name the personal representative (executor) of your Will as you choose, provided the one named can qualify under Florida law. A personal representative is one who manages an estate and may be either an individual or a bank or trust company, subject to certain limitations.
- A trust may be created in a will whereby the estate or a portion of the estate will be kept intact with income distributed or accumulated for the benefit of members of the family or others. Minors can be cared for without the expense of proceedings for guardianship of property.
- Real estate and other assets may be sold without court proceedings, if your will adequately authorizes it.
- You decide who bears any tax burden, rather than the law making that decision.
- A guardian may be named for minor children.
What happens when there is no will?
When there is no will, you have no way to ensure that your wishes, whatever they may be, are carried through. This can be as simple as designating what your intention is for certain personal property, like jewelry, to what sort of burial you want after your death. In addition, if there are certain heirs that you do not want to benefit upon your death, it is imperative that you state this clearly in your will. Otherwise, if you were to die intestate, that means without a will, all your descendants will receive their intestate share whether you had intended that they receive it or not.
If you die without a will, the court will appoint a personal representative, known or unknown to you, to manage your estate. The cost of probating your estate may be much greater than if you had planned your estate with a will, and the administration of your estate may be subject to greater court supervision. Most importantly, in this scenario you have no control over the way in your estate is probated and your intentions cannot be honored and will be governed by the Intestate Laws of Florida, rather than you personal intentions.
May a person dispose of his or her property in any way he or she wishes by drafting a will?
While any sort of property may be transferred by will, there are some interests in property which cannot be willed because of the right of the owner terminates automatically upon his or her 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 certain very specific circumstances a homestead (that is, 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 right of survivorship (a tenancy by the entireties, which is limited to joint ownership between a husband and wife, would be one of these)
A person may not disinherit his or her spouse without a properly executed marital agreement. The law gives a surviving spouse a choice to take either his or her share under the will or a portion of the decedent’s property determined under Florida’s “elective share” statute. This statute uses a formula to compute the size of the surviving spouse’s elective share, which includes amounts stemming from the decedents jointly held and trust property, life insurance, and other non-probate assets. Because this formula is very complicated, it is usually necessary to refer this matter to an attorney with extensive experience in this area of law. Also, if your will was made before the marriage and the will does not either provide for the spouse or show your intention not to provide for him or her, 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.
Must a person leave a child at least one dollar?
No. This is not necessary and may cause considerable added expense to the estate. It is better to simply state in the will that no provision is being made for that child.
How long is a will considered valid?
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 required manner. Changes in circumstances after the execution of the will, such as tax law amendments, deaths, marriage, divorce, birth of children, or even a substantial change in the nature or amount of your estate, 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 or taxes to be paid or both, the existence of a will does not increase probate expenses. A will frequently can reduce expenses. 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 statute. Thus, 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 names the beneficiaries and delineates procedures to simplify the administration process.
Are estates by entireties or joint tenancy with right of survivorship substitutes for a will?
Joint tenancies with rights of survivorship can be established when two or more persons title bank accounts and other assets in their multiple names with the intent to have ownership pass directly to the surviving named owners when one dies. A “tenancy by the entireties” is much the same but involves only married persons. These forms of joint ownership can avoid probate of the account or other asset when an owner passes away. While this can be very efficient in some cases, use of joint ownership can be fraught with problems at death and cause more problems than it solves.
Among other unforeseen problems, indiscriminate use of joint ownership can cause an increase in estate taxes over the joint lives of married persons, force double probates in the event of simultaneous deaths, create unfairness as to who pays for funeral expenses and claims against the decedent, raise undesired exposure during life to the debts of co-owners, and cause a shortage of funds for payment of estate taxes which can cause litigation with the taxing authorities.
Is a life insurance program a substitute for a will?
No. Life insurance is only one kind of property that a person may own and it is governed by the terms of the contract and designated beneficiary (ies) are stipulated in the terms of the agreement. In contrast, a will is necessary to dispose of other assets that a person owns at death. If a life insurance policy is payable to an individual, the will of the insured has no effect on the proceeds. If the policy is payable to the estate of the insured, the disposition of the proceeds may be directed by the will. Life insurance can be useful in providing cash at death for payment of taxes and expenses, but like most strategies for insurance, the careful person will consult a lawyer, a life insurance counselor, and a financial advisor. Mistakes in ownership and beneficiary designations in these policies can cause great increases in estate taxes owed.
Is a trust a substitute for a will?
IIn most instances, a trust is NOT a substitute for a will. However, 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 a person that is not placed in the trust either during a life or at death in most instances escapes the control of the trust. It is the will that controls all property in a decedent’s name at the time of death if the will is drafter properly. Trusts can be helpful to speed administration and save taxes if they are drafted properly and funded during life with the property intended to be transferred by the trust. Often, improperly drafted or incorrectly funded or administered trusts can add to the cost of settling estates, not lower it. Furthermore, it is the probate of the will that can clear creditor’s claims, which is not possible with just a trust administration.
Do you have to go to court to probate a will?
No, personal court appearances are usually not needed to probate a will. However, 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.