There are many people who operate under the misunderstanding that only the very wealthy or those with complicated assets and property need wills when they die. The truth is everyone needs one.
A will is a legal document that sets forth your wishes regarding the distribution of your assets and property, and outlines the care for any minor children (e.g., who will accept the children as guardian of person and property). If you die without a will, those wishes may not be carried out. Further, your heirs may be forced to spend additional time, money, and emotional energy to settle your affairs after you are gone.
Here are five super reasons why you should have a will.
- You get to be crystal clear about who gets your assets or property. You decide who gets what and how much. If you do not have a will, then the courts decide based on a fixed formula outlined in a statute. See Chapter 732, Fla. Stat.
- You also get to decide who should not get any of your assets or property.
- You get to identify who should care for your minor children. Without a will, the courts will decide. And during this time, your children might sit in some government agency foster care system until the probate court has resolved this issue. (Also, in Florida you cannot leave property or assets to minors without establishing a trust for their protection).
- Your heirs will be able to have a more efficient and faster access to your assets and property.
- You can plan to save your estate money on taxes, fees, and costs. You can also make gifts and charitable donations to offset the estate tax.
The legal term if you die without having made a valid will is called being “intestate.” If you die “intestate” (or without a will), the bulk of your assets and property will be distributed to your heirs according to a harsh “formula fixed by law” by a trial court. See Chapter 732, Fla. Stat. Since you are gone and have not left the court any specialized written instructions, the judge is bound to follow the rigid formula outlined in the statute. The court cannot consider what you may have wanted to do with your property before you died.
Only a validly executed, written will can avoid “intestacy” and protect your final wishes, assets, and property. In this instance, form absolutely matters. For obvious reasons involving fraud, Florida does not recognize handwritten and unwitnessed wills.
Additionally, if you pass without any heirs (which is rare), then your property escheats (or is given) to the state.
On the other hand, if you die having created a valid will, then you die “testate” (or with a will). With limited rules, the creation of a valid will allows you to absolutely control how you want your property disposed of and to whom. Sadly, an estimated 60 percent or higher of people die without any estate plan which includes a will and have no say in the distribution of their property and assets, or who will be the guardian for their children. It does not have to be this way.
Wills are a legal document filled with legal ease, specialized terminology, and technical jargon. While you might be able to muddle through the process on your own, it is a better idea that your will is drafted by a knowledgeable attorney. A good attorney will sit down with you and gather the requisite information to understand your assets, property, and wishes to properly draft your will to reflect your wishes after you have gone. If mistakes are made and not promptly assessed and corrected, these “mistakes” often cannot be corrected later when the testator (i.e., the will-maker) is deceased. Simple errors cannot be fixed by agreement of the beneficiaries. Once you are gone, you cannot correct these errors.
Often, the court becomes involved in these “will contests,” and the litigation can be ongoing, costly, and trying for the family. Further, simple mistakes can cost the estate thousands of dollars in taxes, fees, and costs.
Be very warry of the internet document production companies that claim that they can help you create an estate plan or a will on your own for some nominal amount of money. These companies usually do not offer advice or guidance, but rather claim that they provide “‘self-help’ at your direction” (whatever that tag line means). Think of it this way: if you are sitting where you are right now and your appendix burst, would you operate on yourself to conduct an emergency appendectomy? Or would you call for help? The question scarcely escapes its own statement. The creation of the will is one of those documents that requires a professional with the technical skills, drafting experience, and knowhow to create the correct document with the proper language for to accomplish the testator’s wishes. In this instance, you get what you pay for. The peace of mind that comes from a properly drafted will is priceless.
In Florida, a will has a few requirements. These requirements are:
• A person over 18.
• The testator (person making the will) must be of sound mind. If there are questions about this a medical professional can be consulted to sign off on competency issues, but this is not usually a concern. Florida assumes a person is of sound mind, unless it is shown otherwise by a high level of proof that testator is not competent.
• You must have two (2) witnesses sign your will at the same time you sign your will. The witnesses must be competent (18 years old and of sound mind). Disinterested persons are always a plus. In this context, disinterested meaning that the witnesses have no interest in the outcome of the will and are not named beneficiaries.
• The will must be dated as to when the will was created and signed.
• The name of a person to be the executor/executrix of your will. It is also a good idea to name any successor/backup executors/executrixes as contingencies if someone cannot serve as the executor/executrix for whatever reason.
• You must list at least one substantive provision in the will.
An estate plan is a living document that changes and grows as you do throughout your life. As your life moves forward, your plan can provide for various life changes. By getting your wishes down on paper now, you can take care of everyone who is important to you. No matter what happens to you, these people, or organizations (or even pets) can have the funds they need to live without you.
Anthony Candela is the Trial Dog and a Board-Certified attorney. He opened the Candela Law Firm, P.A. in 2014 and handles criminal trials and appeals (as well as estate planning, wills, and trusts). He received his J.D. from Duquesne University School of Law in 2000 and his B.A. in Political Science from King’s College in 1996. As an expert in criminal law and procedure, he has tried over a hundred cases to verdict. Since 2008, he has been certified and recertified by the Florida Bar in Criminal Trial three times. He has also argued several dozen appeals. In the federal system, he is admitted to the Middle District of Florida and the Eleventh Circuit Court of Appeal. #candelalawfirm
If you need assistance with your estate plan, including wills, trusts, living wills, health care surrogates, probate issues, power of attorneys …etc., please call the Candela Law Firm (813) 417-3645 24 hours a day/7 days a week/365 days a year for a short, free consultation or visit on the web www.candelalawfirm.com for further information.
The purpose of this blog is purely education/information and should not be viewed as creating any attorney-client privilege between the reader and author.
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If you have any questions, comments, or concerns, then please feel free to leave me a comment below and thank you reading this blog article.
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