Estate planning is dealing with how your assets will be distributed post-mortem. The most common method for disposing of an estate is through the execution of a will. While almost all assets may be disposed of through a valid will and the probate process, don’t forget that they are but a drop in the pond of estate planning.
Wills must be submitted to the court within ten days after a person’s death in order to get the probate process rolling. While they are the most commonly used method for estate planning, they are from being the most simple.
What is a Will?
A will is a document that describes a person and their wishes for how their estate property will be distributed after they die. Nearly any form of property may be contained in a will, be it real or personal property.
Although wills might encompass an entire estate, there are certain things that will not be affected by disposition in a will, including life insurance policies and Transfer on Death accounts. This is because they already have enumerated contractual beneficiaries that cannot be affected by a will.
Property not included in a will still passes through probate, but might not in the manner that the testator wishes. Property that is not properly handled in a non-probate scheme will end up going through probate anyway. Although you may have utilized other estate planning tools, it is important to include a will so that you know your estate will be preserved whether or not some of the property falls through the cracks.
How do I create a Will?
Will creation in Florida is fairly straightforward. The document must be in writing, and not handwritten; the testator must have the capacity to make a will. The will must be signed by not only the testator, but two witnesses, all in the presence of each other.
Florida does not recognize holographic, or handwritten wills. Capacity, like in the creation of a trust, is the requirement that the testator be at least 18 years of age or an emancipated minor, and of sound mind to make reasonable decisions. The signature and two witness requirement for a will is to authenticate it, so that the witnesses can be called when it is delivered to the court to show it is the true document. Alternatively, witnesses may additionally sign an affidavit attached to the will to make it self-authenticating, which is recommended in nearly every situation and avoids the need for them to report to court.
Why do I care?
Avoiding Intestacy: Dying without a will means dying intestate. If you have not utilized any non-probate tools for the disposition of property, what is unaccounted for in your estate will pass through probate in a default manner and your property might not go to whomever you wish it to.
Control: Wills give you the power to say exactly where you want your property to go after you die. The intestate process leaves everything to your spouse, then to your heirs. In the absence of either, then to your parents and siblings and their heirs. This divides your estate into proportionate shares. A will prevents this from happening and gives you control over who gets what and how much, potentially saving your family from the hardship of sorting through, and arguing over, your estate to get their portion.
Safety: If you have utilized a will substitute or other probate-avoiding tool, a will may help you to make sure that everything is taken care of. In example, if you’ve created a trust but have not properly transferred your property to the trust, that property will still pass through probate. If it is included in your will then it may still be disposed of according to your wishes. If not, then it will pass through intestacy.
The attorneys at Kendrick Law Group have experience preparing wills and navigating the probate process. If you have any questions or require any assistance in the planning of your estate contact us today for your complementary consultation.
Co-written by Spenser Nampon, law clerk