14 Frequently Asked Questions About Wills
1. What is a Will?
A will is your direction for how you want to leave your money or other property when you die. The only rules for making your will are that:
- You must be at least 18 years old.
- You must be of sound mind at the time you sign your Will, and
- Your Will must be written.
- Your Will must be witnessed and notarized the way the law instructs. (This process is called “executing” a Will.)
You may make changes to your Will by drawing up a new Will or by adding a "codicil." Your Will does not become final until you (the testator) die, and A codicil is an addition that is written, witnessed and notarized the same way a Will is. You can’t just make changes to a Will's terms by writing something in or crossing something out after the Will is executed. In fact, writing on the Will after it has been executed may make it invalid.
2. Why do I need a Will?
- You decide who gets your property when you die. Without a Will, the legal system will make those choices for you.
- You may choose the Personal Representative (executor) of your Will, as long as the one named can qualify under Florida law. A Personal Representative manages the estate, and may be an individual or a bank or trust company, subject to certain limitations. (Miller, Crosby & Miller can help you determine who qualifies.)
3. You may create a Trust that allows your estate or a portion of it to be kept intact, with income distributed or saved to benefit your family members or others. This can provide care for children without the expense of guardianship proceedings.
4. Real estate and other assets can be sold without court proceedings if your Will adequately authorizes it.
5. You may make gifts to charity, effective at or after your death.
6. You decide who bears any tax burden, rather than the law making that decision.
3. What happens when there is no Will?
If you die without a Will (called dying "intestate"), your property will be given to your heirs according to a legal formula. Your property does not go to the State of Florida unless there are absolutely no heirs, which is unusual. If you don’t make a Will, the inheritance statute determines who gets your property, and it does not make exceptions for those with greater needs.
- For example: Joan is a widow with two children, both of whom have been financially successful. She also has a disabled sister, who struggles to make ends meet. While Joan wants to leave an inheritance to her children, she also wants to provide support to her sister. Her wishes can be detailed in a Will, so that decisions are not made by the court.
When there is no Will, the court appoints a Personal Representative, whom you may or may not know, to manage your estate. The costs may be greater than if you had made plans for your estate through a Will, and the administration of your estate may be subject to greater court supervision.
4. May I dispose of my property in any way I wish through a Will?
Any sort of property can be transferred by Will, except in some particular situations. Property cannot be willed if your rights to the property end automatically upon your death, or if others have been given rights to the property by Florida law. Some examples of these types of property rights or interests are:
- A homestead (that is, the residence and adjoining lands owned by a person who is survived by a spouse or minor child up to one-half acre within limits of an incorporated city or town or up to 160 acres outside those limits) except in specific circumstances;
- A life estate: property owned only for the life of the owner;
- Any property owned jointly with another person or persons with right of survivorship (a tenancy by the entireties, which is limited to joint ownership between a husband and wife, would be one of these).
You cannot disinherit your spouse without a properly executed marital agreement.
- The law gives a surviving spouse a choice to take either his or her share under the Will or a portion of the deceased spouse’s property, determined under Florida's "elective share" statute. The formula for computing the surviving spouse's elective share is complicated, and you should refer this matter to an attorney with extensive experience in this area of law.
- Also, if your Will was made before the marriage, and the Will does not either provide for the spouse or show that you did not intend to provide for him or her, your spouse would receive the same share of your estate as if you had died without a Will (at least one-half of your estate). The exception is if provision for the spouse was made or waived in a marital agreement.
5. Must a person leave a child at least one dollar?
No. This can actually add considerable expense to your estate. It is better simply to state in the Will that no provision is being made for that child.
6. How long is a Will good?
It is "good" until it is changed or revoked in the manner required by law. You can change your Will as often as you wish while you are sane and not under undue influence, duress or fraud, and as long as changes are made 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 your estate, may raise questions about your Will. All changes require you to analyze and reconsider your Will, and your attorney may advise changing it to address the new situation.
7. Does a Will increase probate expenses?
No. In fact, a Will frequently reduces expenses. Whether or not you have a Will, the probate court has jurisdiction to ensure that real or personal property is transferred properly at your death., If there is no Will, the court follows the inheritance statute, and your heirs must go to court to administer your estate and handle other legal matters. These procedures are often more expensive without a Will to simplify the process.
8. Are estates by entireties or joint tenancy with right of survivorship substitutes for a Will?
These forms of joint ownership can avoid probate of the account or other assets when an owner dies. While this can be efficient in some cases, use of joint ownership can also cause problems at the death of an owner.
Potential problems include increased estate taxes over the joint lives of married persons, double probates in the event of simultaneous deaths, create unfairness as to who pays for funeral expenses and claims against the decedent, raise undesired exposure during life to the debts of co-owners, and cause a shortage of funds for payment of estate taxes.
9. Is a life insurance program a substitute for a Will?
No. Life insurance is only one kind of property that you may own, and you need a Will to dispose of your other assets. If a life insurance policy is payable to an individual, your Will has no effect on the proceeds. If the policy is payable to your estate, the disposition of the proceeds can be directed by the Will. Life insurance can be useful in providing cash at death for payment of taxes and expenses. Like with most strategies, you should consult a lawyer, a life insurance counselor, and a financial advisor; mistakes in ownership and beneficiary designations can cause great increases in estate taxes.
10. Is a trust a substitute for a Will?
No, but 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 that you have not placed in the trust needs to be covered by a Will. A properly written Will controls all of your property at the time of death. Trusts can help speed administration and save taxes if they are drafted and funded properly. When not handled properly, trusts can add to the cost of settling estates. In addition, the probate of the Will clears creditors' claims, which is not possible with only a trust administration.
10. Do you have to go to court to probate a Will?
No, personal court appearances are usually not needed to probate a Will. However, specific documents must be filed with the court. In most counties, neither the estate attorney nor the interested persons ever appear in the courtroom.
11. Can a Will reduce taxes?
A well-drawn Will can reduce estate and income taxes that may arise when you die. Estate taxes are often 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 to understand tax codes and receive income tax advantages.
12. Who should prepare a Will?
Years of training, experience, and study provide the professional judgment that a practicing lawyer uses to advise the best for each situation. In addition, an experienced attorney can effectively coordinate the use of other professionals, such as an investment advisor, actuary, insurance specialist, and tax accountant to complete your estate plan.
There is no such thing as a "simple Will." Even smaller estates can have complexities that only an experienced attorney will foresee.
13. What about Legalzoom.com?
Well, sometimes you really do get what you pay for, even when it's hard to believe. I had a friend go to legalzoom.com for a fast will once, thinking it would be faster, cheaper and simpler. He got a fill in the blank kind of will back, with no particular answers to any questions (and yes, he did have some). So I guess my real answer is, as with most legal advice, "pay me now, or pay me later!" The now is usually less.
14. Is any out of state Will valid?
If you have moved to Florida from another state, you should have your Will reviewed by a Florida lawyer to be sure it is properly executed according to Florida laws, that the witnesses are readily available to prove your Will in Florida, and that your Personal Representative is qualified to serve in Florida.
You should consider signing the following additional documents when you make your Will:
- Living Will: Florida Statutes now provide for a written declaration for you to specify directions for use of life-prolonging procedures.
- Durable Power of Attorney: This document can assist in handling your property if you become incapacitated, without having to open a guardianship proceeding in court. This is especially valuable for paying the bills and protecting your assets.
- Health Care Surrogate: Florida law now allows you to designate a person to make your health care decisions when you may not be able to do so. This includes the authority to decide when to withdraw medical procedures.
- Pre-Need Guardian Designation: Florida law allows you to designate a person who could be appointed guardian over you should you become incapacitated and/or over your children should you become incapacitated or upon your death. If you do not designate a guardian, the Court will do so for you if and when it becomes necessary.