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Do You Have A Will?
Frequently Asked Questions
2. WHAT CAN BE ACCOMPLISHED BY A LAST WILL AND TESTAMENT?
3. WHAT HAPPENS WHEN THERE IS NO WILL?
4. MAY A PERSON DISPOSE OF HIS OR HER PROPERTY IN ANY WAY HE OR SHE WISHES BY A WILL?
5. MUST A PERSON LEAVE A CHILD AT LEAST ONE DOLLAR?
6. HOW LONG IS A WILL GOOD?
7. DOES A WILL INCREASE PROBATE EXPENSES?
8. ARE ESTATES BY ENTIRETIES OR JOINT TENANCY WITH RIGHT OF SURVIVORSHIP SUBSTITUTES FOR A WILL?
9. IS A LIFE INSURANCE PROGRAM A SUBSTITUTE FOR A WILL?
10. IS A TRUST A SUBSTITUTE FOR A WILL?
11. DO YOU HAVE TO GO TO COURT TO PROBATE A WILL?
12. CAN A WILL REDUCE TAXES?
13. WHO SHOULD PREPARE A WILL?
14. SOME SUGGESTIONS CONCERNING WILLS
1. WHAT IS A WILL?
A will is a legal form that is a written direction controlling the disposition of property at death. The laws of each state set the formal requirements for a legal will.
In
a. You, the maker of the last will and testament (called the testator), must be at least 18 years old.
b. You must be of sound mind at the time you sign your last will and testament.
c. Your will must be a written legal form.
d. Your last will and testament must be witnessed and notarized in the special manner provided by law for wills.
e. It is necessary to follow exactly the formalities required for the execution of a will. An estate planning lawyer can assist you in ensuring that the formalities required for a valid will are properly followed.
f. To be effective, your last will and testament must be proved in and allowed by the probate court. A "self-proved" will allows for the probate court to immediately allow the will's admission to probate. A wills and trusts lawyer or estate planning attorney can assist you in self-proving your will.
No will becomes final until the death of the testator, and it may be changed or added to by the testator by drawing a new will or by a "codicil," which is a legal form that is simply an addition or amendment executed with the same formalities of a last will and testament. A will's terms 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. (Back to Top of Page)
2. WHAT CAN BE ACCOMPLISHED BY A WILL?
a. You decide who gets your property instead of the Florida intestacy law making the choice for you.
b. You may name the personal representative (executor) of your will as you choose, provided the one named can qualify under
c. A trust is a legal form that may be created in a last will and testament 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.
d. Real estate and other assets may be sold without court proceedings, if your will adequately authorizes it.
e. You may make gifts, effective at or after your death, to charity.
f. You decide who bears any tax burden, rather than the law making that decision.
g. A guardian may be named for minor children. (Back to Top of Page)
3. WHAT HAPPENS WHEN THERE IS NO WILL?
If you die with no 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
When there is no will, the court appoints a personal representative, known or unknown to you, to manage your probate estate. The cost of probating 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. (Back to Top of Page)
4. MAY A PERSON DISPOSE OF HIS OR HER PROPERTY IN ANY WAY HE OR SHE WISHES BY A WILL?
While any sort of property may be transferred by a last will and testament, there are some particular interests in property which cannot be willed because the right of the owner terminates automatically upon his or her death, or others have been granted rights in the property by
• Except in certain very specific circumstances a Florida 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 legal form called a 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 decedent's 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 estate planning lawyer or a probate 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. (Back to Top of Page)
5. MUST A PERSON LEAVE A CHILD AT LEAST ONE DOLLAR?
No. This is not necessary and can actually cause considerable added expense to the estate. It is better simply to state in the will that no provision is being made for that child. (Back to Top of Page)
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. (Back to Top of Page)
7. 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 reduces 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 probate 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. (Back to Top of Page)
8. 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 dies. 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. (Back to Top of Page)
9. 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 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 an experienced estate planning lawyer, a life insurance counselor, and a financial advisor. Mistakes in ownership and legal forms called beneficiary designations in these policies can cause great increases in estate taxes owed. (Back to Top of Page)
10. IS A TRUST A SUBSTITUTE FOR A WILL?
No, in most situations. A trust is a legal form 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 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 drafted 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, however, 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 creditors' claims, which is not possible with just a trust administration. (Back to Top of Page) 11. 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 Florida counties, neither the estate's probate attorney nor the interested persons ever appear in the courtroom. (Back to Top of Page)
A well-drawn last will and testament can reduce estate and income taxes that may arise when someone dies. Estate taxes are often by far the largest cash expense an estate can have. There is also the possibility that Congress may increase the impact of the estate tax in the future. In addition, proper planning must be made for income tax advantages. Proper planning with a will legal document is indispensable in taking these benefits in the tax codes. An experienced estate planning lawyer or attorney can help you ensure that you take advantage of all of the tax planning options that are available to you when you draft your will legal form. (Back to Top of Page)
13. WHO SHOULD PREPARE A WILL?
No sensible person would employ "just anyone" to fill teeth, take out an appendix, or deliver a baby. The person who wants these services performed skillfully with the minimum risk to health, life, property, or the accurate execution of his or her wishes, will engage the services of a trained person. Except in dire emergency, these important tasks should not be performed by anyone except the professional.
The drafting of a will legal document involves making decisions that require professional judgment which can be obtained only by years of training, experience, and study. Only the practicing estate planning lawyer can avoid the innumerable pitfalls and advise the course best suited for each individual situation. In addition, an experienced estate planning attorney will be able to coordinate the use of other skilled professionals, such as an investment advisor, actuary, insurance specialist, and tax accountant to complete a proper estate plan.
Moreover, there is no such thing as a “simple will.” Even smaller estates can have complexities only foreseeable by the experienced estate planning attorney. (Back to Top of Page)
14. SOME SUGGESTIONS CONCERNING WILLS
a. Marriage does not cancel a will in
b. If you have moved to Florida from another state, it is wise to have the legal form of 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 Florida.
c. Before your will legal form 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 legal document is not self-proving, it generally must be proved by the oath of one of the witnesses. The oath must be given before a circuit judge, clerk of court, or a commissioner specially appointed by the probate court for that purpose. (Under certain circumstances, the probate court may permit the will to be proved by other means permitted by law.) A will legal document 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 his or her oath after your death. For your will legal form to be made self-proving, you must acknowledge the will before an officer authorized to administer oaths; the witnesses must make affidavits before the officer; and the officer must evidence the acknowledgment and affidavits by a certificate attached to or following the will. An appropriate legal form of certificate is prescribed by
d. No matter how perfect a will may be prepared for you, unless it is properly executed in strict compliance with the laws of
e. Every person owning property who wishes to exercise control in the disposition of that property when he or she dies, should have a will legal document regardless of the value of the property. Of course, the larger the estate the greater the tax consequences.
f. The following additional documents should be considered for signing when you make your will:
• Living Will:
• Durable Power of Attorney: This legal form can assist in handling the property of a person who has become incapacitated without having to open a guardianship proceeding in court. This is especially valuable for paying the bills and protecting the assets of an incapacitated person.
• Health Care Surrogate:
• Pre-Need Guardian Designation:
This material represents general legal information. Since the law is continually changing, some provisions may be out of date. It is always best to consult an experienced estate planning attorney about your legal rights and responsibilities and the proper legal forms and legal documents needed for your particular case.
