What Is A Will
What is a Will and How Does it Protect Your Legacy?
Call 863.250.2990 today to schedule a Free Consultation with our skilled Probate & Will attorneys.
50+ Years of Ancillary Probate and Wills Experience
You’ve worked hard your entire life, building a comfortable nest egg for your loved ones. But what happens if the unexpected occurs and you pass away without a will? Suddenly, your family is left to navigate the complexities of intestacy laws, potentially facing drawn-out court battles and surprising outcomes.
It’s a stressful situation no one wants to endure. Nonetheless, having a will established can offer you the reassurance that your family will be provided for in accordance with your desires.
In this article, we’ll explore the essential aspects of wills, from understanding their purpose and key components to navigating the probate process.
What is a Will?
A will is a legal paper enabling an individual, referred to as the testator, to specify how their assets will be distributed and handle matters after passing. Central to any estate plan, a will specifies how property, finances, and possessions should be distributed among beneficiaries.
The Importance of Having a Will
Wills are vital for more than just wealthy individuals. Many people mistakenly believe that they don’t need a will if they don’t own significant assets; however, wills are useful for directing personal property, safeguarding guardianship, and naming beneficiaries for assets like life insurance policies and retirement plans.
Without a will, a person is said to die intestate, meaning state law determines the distribution of their estate, often leading to lengthy and costly probate processes.
In most cases, a will must be probated, a legal process that validates the will and supervises the executor of the estate as they carry out the testator’s wishes. The probate process may differ by state; for instance, probating a will in Florida may have distinct procedures compared to other states.
If avoiding probate is a priority, some may consider alternatives like a living trust, which can bypass probate for specific assets. Ultimately, consulting an estate planning attorney can ensure that your will is properly structured and accounts for state-specific requirements.
Key Components of a Will
Executor
An executor is the person who is in charge of carrying out the wishes contained within a will. The executor will direct the probate estate, address any outstanding debts, and ensure that assets are made to align with the testator’s wish as stipulated within the will by completion of all the relevant paperwork filed before the probate court.
An executor has to be trustworthy and systematic. They should understand the estate planning process and be prepared for the probate court’s oversight, which supervises the executor to ensure fair administration. For large estates or if there are complex assets like a revocable living trust, consulting an attorney may help to appoint joint executors or arrange for professional assistance.
Beneficiaries
Beneficiaries are individuals or organizations designated to receive assets from the estate. Beneficiaries can include family members, friends, or charities, and they should be clearly identified to avoid disputes.
To ensure clarity, will often specify whether beneficiaries receive specific bequests (e.g., a family heirloom) or a percentage of the total estate. It’s important to regularly update the list of beneficiaries in case circumstances change, like the birth of a new heir or the passing of an existing beneficiary. This responsibility is a key part of proactive estate planning.
Guardianship
For parents, a will allows the designation of a guardian for minor children. Naming a guardian is a crucial decision that affects a child’s care if the parents die without making provisions. Factors such as the potential guardian’s values, lifestyle, and willingness to take on this responsibility should be considered carefully. The designated guardian can help avoid potential disputes or court intervention in the event that the surviving family disagrees with the child’s care.
Asset Distribution
A will details the distribution of assets, directing property, personal belongings, and finances to specific individuals or entities. Common scenarios include designating a surviving spouse as a primary beneficiary, with provisions for children or other heirs.
Some wills specify that assets be split into percentages rather than specific items, providing flexibility in distributing the estate after your death. Creating a letter of instruction alongside your will can clarify distribution preferences for unique or sentimental items that might not be easily specified in the will’s text.
Each of these elements is crucial in making sure that an individual’s estate planning papers represent their desires and that their assets are handled to reduce possible disputes.
Different
Types of Wills
When it relates to drafting a last will and testament, a one-size-fits-all approach does not apply. You can choose from different types of wills, each with its unique characteristics and requirements. Let’s take a look at some of the most common options:
Holographic Will
Florida law, for example, requires that the signature and all the material provisions be in the testator’s handwriting. While convenient for simple estates, holographic wills can sometimes be challenged in court due to handwriting issues or lack of proper witnessing.
Nuncupative Will
Statutory Will
However, they might not be suitable for complex estates or situations involving blended families or significant charitable bequests.
Wills and Estate Planning
Estate Plan
It includes creating essential legal documents, such as a will, which designates beneficiaries, names an executor, and outlines how assets are to be divided. However, a will is just one piece of a comprehensive estate plan, which may also include trusts, powers of attorney, and life insurance.
Wills and Trusts
While a will goes into effect only after the person dies and may need to be admitted to probate, a trust can take effect during the grantor’s lifetime, potentially helping beneficiaries avoid the probate process altogether.
A testamentary trust is created in a will and only springs to life after the grantor’s death. In contrast, a revocable living trust is revocable during the grantor’s lifetime. Trust creation permits more control of what happens with specific assets and may also limit estate tax purposes.
Life Insurance
Coordinating your life insurance with your will can ensure that all assets, including insurance proceeds, align with your estate planning goals. It is also important to store life insurance documents and wills in a secure location, like a safe deposit box.
Powers of Attorney
A will and other estate planning documents help the heirs to know their well-being. It simplifies matters if a person dies without proper preparations. Consulting an estate planning attorney can help create a last, clear set of instructions that reduce the need for court involvement and make asset distribution more seamless.
The Probate Process
What is a Probated Will?
What Does Probating a Will Mean?
Probate is the legal process in which a will is validated, and the deceased’s estate is settled under court supervision. The purpose of probate is to ensure that the will is authentic and the distribution of assets is managed fairly and legally. It entails recognizing and cataloging the assets of the deceased, settling debts and taxes, and allocating the leftover assets to beneficiaries.
How to Probate a Will
The will probate process typically involves several steps:
Filing the Will with the Court
The executor files the will with the probate court, beginning the formal process.
Notifying Interested Parties
Beneficiaries, creditors, and other interested parties are informed of the probate proceedings.
Inventorying and Appraising Assets
All probate assets (property, accounts, etc., that are subject to probate) are listed and appraised.
Paying Debts and Taxes
Outstanding debts, taxes, and expenses are paid from the estate.
Distributing Remaining Assets
Once debts and taxes have been paid, the leftover assets are allocated as per the provisions of the will.
Probate a Will
in Florida
In Florida, the probate procedure is regulated by particular state laws that specify thorough criteria for asset distribution and the selection of an executor. Depending on the estate’s value and complexity, Florida offers different probate processes, such as formal or summary administration. Working with a probate attorney or consulting resources specific to probating a will in Florida can provide guidance.
How Long Does it Take to Probate a Will?
Does a Will Have to Be Probated?
Assets owned in the name of the decedent alone might be subject to probate unless the assets have been placed in a right of survivorship plan or similar mechanism that would allow it to bypass the probate process. An estate attorney can help an individual determine if the estate is required to go through probate or if it can use a strategy to avoid probate altogether.
If you have questions about Probate and Will issues, don’t wait—make sure your legal rights are protected. Call 863.250.2990 today to schedule your Free Consultation with our Probate attorneys.
Attorneys
A graduate of Jones Law, he is our team lead for the probate department and case management. He is the one to establish the plan in court.
A graduate of St Thomas Law, Carlos is head of client management and client relations. He is the master of what happens out of court.
A graduate of Cumberland School of Law, Dennis serves as of counsel bringing legislative experience from his tenure as U.S. Congressman.
Dying Without a Will
When someone passes away without a will, their belongings are allocated as per their state’s intestacy regulations. These laws provide a default framework for determining who inherits property, but they may not align with your actual wishes. For example, state law might dictate that your assets be divided between your spouse and children in a specific way, even if you had different intentions.
Dying without a will can also cause problems for your children, who are minors. The court is going to appoint a guardian, which might not have been your choice. Also, intestacy can lead to even more family feuds and disputes about assets. All this adds up to the stress that you would already be going through in the most turbulent times of your life.
To avoid these complications and ensure your wishes are honored, it’s essential to create a valid will that clearly outlines how you want your assets to be distributed and who you want to care for your minor children.
Creating Your Last
Will and Testament
Consider Your Assets and Beneficiaries
List your assets and designate beneficiaries to receive them. This helps the executor, the person responsible for administering the estate, to distribute everything as you wish.
Choose an Executor
Select a trustworthy executor to manage your estate. The probate court usually supervises the executor to ensure your instructions are followed.
Decide on Guardianship
If you have minor children, designate a guardian to care for them. This decision can be crucial for families with young dependents.
Document Your Wishes
Write your intentions clearly to avoid misunderstandings, using either an online will maker or consulting a professional. Include any specific conditions or codicils for future changes.
Seek Legal Advice if Needed
While not always required, consulting an attorney may be beneficial, especially if your estate or family circumstances are complex.
Execute the Will Properly
To make it legally binding, sign the will in the presence of two witnesses and consider having it notarized for added validity.
What Is a Codicil to a Last Will and Testament?
Life is full of changes – marriages, new babies, career shifts, and more. These changes often necessitate adjustments to your estate plan. But what if you want to make a minor update to your will without completely rewriting the entire document? That’s where a codicil comes in!
A codicil is a legal document that acts as an amendment or supplement to your existing last will and testament. Think of it like a supplement where you can make specific changes, such as:
Changing your executor: Perhaps your designated executor has moved, or you’ve decided someone else would be a better fit. A codicil allows you to easily update this information.
Updating beneficiaries: You might need to add new beneficiaries (like a new child or grandchild) or remove someone who was previously listed.
Adjusting bequests: If you’ve acquired new property or want to change how specific assets are distributed, a codicil lets you do so without altering the entire will.
Important Note: While a codicil is a handy tool for minor modifications, it’s not meant for major overhauls of your will. If you need to make significant changes, it’s generally advisable to create a new will altogether.
Requirements for a Codicil
Capacity: You must be of sound mind when creating the codicil.
Signature: It must be signed by the testator (the person making the will).
Witnesses: It typically requires the presence of witnesses (usually two), who must also sign the document.
Keeping Your
Will Current
Using a codicil can be an efficient way to keep your will up-to-date and ensure it accurately reflects your current wishes. However, it’s crucial to review your entire estate plan periodically, especially after significant life events, to determine if a codicil or a completely new will is necessary.
Wills and Trusts: Working Together
For example, a revocable living trust can complement a will by holding assets to avoid probate, ensuring swift access for a guardian for your minor children if needed. To establish a balanced plan, consult an attorney to address any necessary changes.
Secure Your Legacy Today
Don’t leave your legacy to chance! If you haven’t already, take the first step towards creating your will today. Contact The MTM Law Firm, your experienced probate attorneys in Florida, to discuss your needs and create a plan that protects your loved ones and fulfills your final wishes.
If you have questions about Probate or Will issues, call 863.250.2990 today to schedule your Free Consultation with our Probate attorneys.