DO I NEED A WILL?
In almost every case, the answer is yes. Let’s discuss what a Will is to understand why a Will is almost always necessary. A Will is a legal document that contains a person’s wishes for how his or her assets will be distributed after his or her death. Essentially, a Will is your chance to guarantee that your property goes to the right people in the right proportion and in the correct manner (either outright or in trust for their benefit), rather than allowing the State of Florida to make that decision for you. This can be especially important in cases where your chosen distribution differs from the legal default. For example, someone with a special needs child may wish to allocate a larger share of assets than would otherwise be allowed to ensure that child’s continued care. In other cases, a person may wish to support an important charitable organization, a friend, extended family members, etc., all of whom would receive nothing without a will expressly requiring it.
Having a Will allows you to do more than simply specify who will inherit your assets. A Will can be used to appoint a guardian for your minor children following your death or direct how and when a specific beneficiary receives his or her share of assets. Wills can also create testamentary trusts to hold assets for the benefit of children or loved ones. By placing the assets into a testamentary trust and appointing a responsible party to serve as trustee, you may provide the beneficiary with a layer of protection against creditors, divorce, guardianships, incapacity, and waste.
WHAT HAPPENS IF I DIE WITHOUT A WILL?
Dying without a will in Florida means your assets will pass according to the state’s laws regarding intestate succession. This is just a fancy legal word for death without a will. The law in Florida provides that if a person dies with children, but no spouse, the children will inherit everything. If the person dies with a spouse, but no direct descendants, then the spouse inherits everything. If the person dies with children and grandchildren who are all children/grandchildren of the person who died and the surviving spouse, then the surviving spouse will get everything. If the surviving spouse is from a second marriage and the person who died had kids from a previous marriage or relationship, then the surviving spouse will get half the estate and the children will get the other half. In cases where there is no spouse or children, parents inherit everything if they are still living; if not, siblings are next in line. Having a Will ensures that you, and not the State of Florida, decides who will inherit your assets as well as how and when they will receive the assets.
WILL THE GOVERNMENT TAKE MY PROPERTY IF I DON’T HAVE A WILL?
The last stop in the intestate succession process is the State of Florida. When a person dies without a Will and does not have any family to inherit, property will “escheat” to the state, meaning the state effectively becomes your heir. This happens only rarely and only when there are no spouses, children, grandchildren, parents, grandparents, siblings, nieces, nephews, or cousins. To avoid this possibility, all you need to do is write out a legally enforceable Will.
WHAT SHOULD I PUT IN MY WILL?
Wills are excellent ways to deal with and distribute financial assets. Beyond handing out money, Wills can also be used to do other things. For example, Wills can set aside amounts of money for specific purposes, not just as inheritance. A person can set aside funds to pay for funeral expenses, final debts, or even to care for a beloved pet. Wills can be used to choose a Personal Representative or appoint a trustee to manage assets held in trust for the benefit of a child or loved one. Perhaps most importantly, for those with minor children, Wills allow you to name guardians for the children and provide for their financial future. Having a Will allows you to choose who will raise your children and who will have control over the assets you leave behind for their benefit.
Wills can also direct whether a beneficiary will receive assets outright or whether the assets will be held in a testamentary trust for that person’s health, education, maintenance, and support. By utilizing a testamentary trust you can ensure that assets are protected against creditors or divorce, do not trigger a costly guardianship process if left to minor children, and are held or utilized for a specific purpose or time.
ARE OUT OF STATE WILLS STILL VALID?
Some people are under the impression that a Will or Revocable Trust drafted in one state is valid only so long as the person remains in that state. Thankfully, this is not true. A legally enforceable Will or Revocable Trust that has been validly executed in one state will be recognized as legally valid in every other state. That being said, the court and probate systems work differently in every state and there are certain provisions that may be interpreted differently depending on your state of residence. Though you shouldn’t fear that a move requires reinventing your entire estate plan, it does make sense to sit down with an attorney and ensure that your existing documents are sufficient given your new state’s legal requirements. If you have moved to Florida from out of state, contact the Roark Law Firm for a complimentary review of your existing out of state documents. We will happily give you a refresher on how your documents operate and any issues that may arise as a result of your move.
HOW OFTEN SHOULD I UPDATE MY ESTATE PLAN?
Many people mistakenly view creating an estate plan as a one-time ordeal, believing that once it’s finished, you can put your papers in a filing cabinet and never think about them again. A better approach is to view estate planning as an ongoing process, rather than one with a finite beginning and end. Estate plans should be reviewed or updated whenever there is a significant change in your life. This change can be personal, such as a divorce, a new marriage, birth of children, grandchildren, etc., or it can be financial, such as opening a new business, purchase of new assets, sales of previously accounted-for assets, etc. The safe approach is to plan on reviewing your existing estate plan every few years ensure that something hasn’t happened that would make you consider changes.