WHAT IS A WILL?
A will is a written direction controlling the disposition of property at death. The laws of each state set the formal requirements for a legal 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 simply an addition or amendment executed with the same formalities of a will. 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.
WHAT CAN BE ACCOMPLISHED BY A WILL?
- You decide who gets your property instead of the law making the choice for you.
- You may name the personal representative (executor) of your will as you choose, provided the one named can qualify under Florida law. A personal representative is one who manages an estate, and may be either an individual or a bank or trust company, subject to certain limitations.
- A trust may be created in a will 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.
- Real estate and other assets may be sold without court proceedings, if your will adequately authorizes it.
- You may make gifts, effective at or after your death, to charity.
- You decide who bears any tax burden, rather than the law making that decision.
- A guardian may be named for minor children.
WHAT HAPPENS WHEN THERE IS NO WILL?
If you die without a 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 Florida unless there are absolutely no heirs at law, which is very unlikely. In other words, if you fail to make a will, the inheritance statute determines who gets your property. The inheritance statute contains a rigid formula and makes no exception for those in unusual need.
When there is no will, the court appoints a personal representative, known or unknown to you, to manage your 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.
HOW LONG IS A WILL VALID?
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.
IS A TRUST A SUBSTITUTE FOR A WILL?
No, in most situations. A trust 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.
DOES AN ESTATE HAVE TO GO THROUGH PROBATE IF DECEDENT HAS A WILL?
Yes. Assets in a will are probate assets.
CAN A WILL REDUCE TAXES?
A well-drawn will 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 is indispensable in taking these benefits in the tax codes.
WHO SHOULD PREPARE A WILL?
The drafting of a will should be done by an attorney as it involves making decisions that require professional judgment which can be obtained only by years of training, experience, and study. Only the practicing attorney can avoid the innumerable pitfalls and advise the course best suited for each individual situation. In addition, an experienced attorney will be able to coordinate the use of other skilled professionals, such as an investment adviser, 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 attorney.
The following additional documents should be considered for signing when you make your will:
LIVING WILL: a written declaration by an individual specifying directions as to use of life-prolonging procedures.
DESIGNATION OF HEALTH CARE SURROGATE: designation of a person to make health care decisions when the individual is incapacitated. Included in this important appointment is the power to decide when to withdraw medical procedures.
DURABLE POWER OF ATTORNEY: document which allows a person to designate an agent to act on their behalf 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.