Whether you call it your Last Will and Testament, Last Will, or Will, these are all just different names for the same thing. A Will is a document that speaks for you after you have passed away. It tells your loved ones and those who are not, what your final wishes are regarding your earthly possessions.
A Will can be a very short document as long as it is done properly and adheres to the laws of your state. The directives of a Will are only effective when a person dies, so there are very strict requirements that must be carried out in order for a court to allow the Will to be followed. Here are answers to eight questions we are commonly asked about drafting and executing a Last Will and Testament:
Question #1: Will My Assets Go to the State if I Die Without a Will?
Actually, if a Florida resident dies without a Will, the state writes a Will for them. F. S. Chapter 732 outlines how the individual’s estate will be divided. For some, this may be exactly what they would have wanted, while this might not be the case for others.
The intestate statute does not allow for trusts to avoid guardianship for children or disabled beneficiaries and may require dividing assets between the spouse and children, and much more. To be assured your estate will be distributed according to your wishes, you need a properly developed estate plan.
Sonny Bono, a happily married man and former member of the US House of Representatives (also former singer and ex-husband of Cher), died suddenly in a tragic skiing accident. He had no Will or trust. Because he had no Will, his wife (with his minor children) had to go through the hassle of:
- Filing a petition with the state
- Opening their private finances to the world
- Obtaining court approval for basic living expenses
- Filing a court guardianship for the children
As a result, people were able to claim they were the children and claim assets. All of this could have been avoided with an estate plan.
Question #2: Do Beneficiary Designations Have to Be Distributed According to My Will?
It depends… After you pass away, the assets that are in your name alone and get passed through the probate process might be the only assets that must be distributed according to your Will.
If you leave everything to your three children in equal shares and you have a bank account that has no other owners or beneficiaries, the Will would rule. But, let’s say you want to avoid probate and leave everything to Daughter #2, believing she will share with her other two siblings. Daughter #2 can do that, but in most cases, she is not required to.
The bottom line is that if you designate a beneficiary differently from your Will, that asset will go to your named beneficiary outside of the Will.
Question #3: Must My Will Be Notarized?
Not really… but it will save a lot of time and effort. In a Florida Will, the notary actually notarizes a supporting document called a Self Proving Affidavit. This document doesn’t make the will valid or invalid, but “proves it up” for the court, so that it can be accepted by a judge without any further proof.
Without the Affidavit, a witness or another person must go to the court to “prove up” the Will. When people did not travel and move much, it was fairly easy to find one of the witnesses, but today this is quite a challenge. So, in most cases, attorneys make the Affidavit a part of their estate plan documents.
Question #4: I Want to Disinherit Someone, Do I Need to Leave Them at Least $1?
That may have worked in other times or in other states, but we never think it is a good idea in Florida. It puts a bad taste in everyone’s mouth. By leaving the person you want to disinherit a small amount, you will include them, in a negative way, rather than exclude them. So, by leaving someone $1 you have made them an interested party in your probate process. The first thing to find out is whether that person would have had a right in the first place, then to appropriately disinherit them.
Question #5: I Wrote My Will More than a Decade Ago, Do I Need to Update It?
Life is not set in stone and so, neither is your Will. It is important to revisit it periodically. With that, it is good to read over it and make sure it says what you want it to. You may want a few minor changes and think you can write them in but that’s not so.
For your new changes to be included, they must be part of a properly executed Will or Codicil (addendum to a Will). This is one reason we believe it is important to revisit your will regularly. It is important to review your estate plan periodically and especially when you experience life-altering circumstances such as marriages, births, deaths, and divorces.
A qualified attorney can help you sort through your intentions and help find the best plan for you.
Question #6: Do I Need to Keep My Original Will or Just a Copy?
When a person dies before the court can enter their Will, very strict standards are followed. If the original will is available, it must be submitted to the court.
If it cannot be found, often the courts question if the testator wanted to cancel or destroy it. So, the people who want it followed must go to extraordinary efforts to have it accepted into court. Those efforts alone can take weeks and often many months, and possibly court hearings, before a judge will accept the lost original Will.
We encourage people to store their Will in a safe place and let the right people know where to find it. You can learn more about safe places to keep your Will in our blog: What to do With Your Original Will.
Question #7: I Thought Having a Will Avoids Probate?
Your Will should be an integral part of your estate plan, but alone, it is not a tool to avoid probate. First, let’s talk about what probate is.
Probate is the state’s way of making sure your wishes are carried out, taxes are paid, your creditors are properly dealt with, and your beneficiaries receive their inheritances.
In order to do that, someone must file a petition for probate administration in the court along with several other required documents, and a judge will appoint a personal representative. This is a legal process with various steps along the way.
While some people believe probate is always bad, others decide it is the best choice for their circumstances. Many want to avoid the cost of probate, but a Will alone will not accomplish that goal. Trusts and other estate planning tools are effective tools for avoiding probate.
Question #8: Do I Really Need an Attorney to Draft My Will?
Please take the time to read about do it yourself Wills and the problems that have come from them. We hope that after reading this article you will understand an estate planning or elder law attorney is the best person to help you through any unforeseen issues when planning your estate. The attorneys at HKH Elder Law focus on estate planning and the many issues surrounding it, and we are prepared to put our skills and experience to work for you.
Give us a call today at (727) 240-2350 to set up your consultation so we can discuss your estate planning goals.