Preparing a Last Will and Testament is never the first thing on a person’s mind. In fact, it’s really not something anyone wants to think about. It reminds us that one day, we will leave this earth and those we love behind. However, it is for that exact reason that preparing a Will is essential.
The passing of a loved one is never easy. However, knowing what their last wishes were for their family and friends can help to ease some of the stress and the pain that their passing may cause. One of the first steps to any probate is to locate any and all Wills or Trust documents prepared by the decedent so that the family can carry out those last wishes.
Providing for Minor Children
Do you have minor children in your care? Wills are a good way to ensure that not only will they be cared for by a guardian of your choice, but also that they will be properly cared for with any assets that you have left behind. It is common to see language in Wills directing that these minor children be prevented from having full access to such assets until they reach an age at which you believe they will be responsible enough to handle them properly, and similarly ensuring that their guardians must keep that money protected for them until such time as they come of age.
Another reason to prepare a Will is to help minimize Estate taxes. Items that are given to family or charities can reduce the overall value of your Estate. This way, when the time comes to pay Estate taxes, the final value owed is minimal or even non-existent.
Many believe if they don’t have much property to their name, physical or otherwise, having a Will is unnecessary. However, this is far from true; a Will can also be used to dictate things other than assets. Like how your remains should be handled, what type of funeral you want, or who should handle your Estate. Even if you think these things aren't important, they can give grieving families less to worry or argue over.
Disinheriting a Family Member
Sometimes family members become estranged from us. Sometimes, friends or neighbors become closer to us than those who share the same blood. So if it is important to you that those who you cared for during life receive your property rather than a relative who removed themselves from your life, it is possible to disinherit such individuals within your Will, ensuring that your property is distributed in a way that you would deem fair.
It doesn’t matter what age you are. A Will is important for every adult to have because tomorrow is not promised to us. Life is full of unexpected twists and turns. Being as prepared as possible for any of them is a good way to give you and your family peace of mind for the future.
The first step to getting any estate planning document(s) such as a Will, Power of Attorney, Living Will, and/or Health Care Surrogate is to call our office and schedule a free hour-long consultation with our experienced Attorney, Karen Estry. During this consultation, Ms. Estry will make note of your situation and what you hope to gain from this experience as well as provide a packet for you to fill out the specifics of your desires. Once we know exactly how to prepare your document(s), we will send them to you for review. If all is in order, the final step is to execute said documents at a final appointment. You will have a chance to read and review your documents again before signing, which takes place before two witnesses and a notary, provided by our office. At the end of the appointment, you will leave with the original document(s) and a copy.
Your Will can be changed at any time and for any reason, as long as you are legally competent to make the changes, unless otherwise specified in the document itself. You should review your Will periodically in order to assure yourself that it still accomplishes your objectives. Over time, people may come and go from your life, your assets could grow or diminish, and you may want different things than you did when you first executed your Will years ago. You may wish to designate a new Personal Representative or new Beneficiaries if the previous one predeceases you or your relationship changes. You may have gained or lost money and assets that lead you to desire a different distribution system among your Beneficiaries. You may have changed your mind about what you wish to be done with your remains. Regardless of the reason, you cannot change your Will at home by simply crossing out paragraphs or writing over it. If you do that, it could completely invalidate your Will. If a change becomes desirable or necessary, contact this office for another appointment to be sure it gets done properly.
Any number of things could happen that would require you to change or rewrite your Will. Several of the more common ones include:
- An unexpected death or disablement of someone crucial to proper execution, such as your Personal Representative or Beneficiaries;
- A new addition to your family, such as the birth of a related child, or an adoption of a new child;
- A change in your marital status, either from ‘single’ to ‘married’ or vice versa, and the desired inclusion of the children of a new spouse to receive assets;
- A considerable change in your economic picture;
- A need to change your Personal Representative, Beneficiaries or Guardians;
- A change in state or federal law which may affect taxes or the distribution of your property.
Regardless of the reason you need or wish to change your Will, we are here to make the process as easy, efficient, and effective as possible.
In the United States, 26 states allow for wills to be handwritten. Florida is one of the 24 that does not, so your official Will itself must be typed. However, Florida law allows you to refer to a list made separately from your Will which states who will receive certain items of personal property. Your Will may include a reference to such a list. The list can dispose of only personal household goods such as items of furniture, jewelry, sporting goods, tools and so forth. You cannot dispose of cash, bank accounts, stock, insurance policies, real estate, or other non-personal property in your list. It must be in your own handwriting (not typed on a computer) and should also be signed and dated. It is not required for such a list to be witnessed, as it is for a Will itself. This list is best kept with your Will, if it is possible, and if not must be found within 30 days of the date your Will is found or else it cannot be used regardless of your wishes.
Your Will is an important document and should be stored safely. Although our office will keep a copy of your Will, you have the only original. If the original Will is destroyed, lost or unable to be found despite reasonable searches, a copy must go through the process of being “reestablished” as the original, which can complicate the period following your death and thus make a difficult time even more difficult. As such, keeping the original Will discoverable while also keeping it safe is of the upmost importance.
The choice of where to keep your Will is yours. You can keep the Will in a safe place at home such as a private safe, filling cabinet, or desk, but you could be burglarized, a fire could destroy it, or it may be difficult to locate. Alternatively, you can choose to place it in a safety deposit box. If you choose to do so, this has the great benefit of being as safe as possible, but your heirs will need to obtain a court order to gain access to your safety deposit box after your death if they are not listed as joint owners of the box.
You may revoke your Will at any time by destroying it or by preparing a new Will. If you destroy your Will without preparing a new Will, your assets will pass at your death according to the laws of “intestate succession.” If you decide you no longer want the provisions of your current Will, you should contact our office to make an appointment to prepare a new Will with your new desired provisions.
People are often confused as to whether they need to probate an estate or not, and most people do not want their own estate to have to go through probate, as it could be a lengthy and difficult process for their family and friends at an already difficult time. The best way to guarantee that your estate does not have to go through probate is to die owning nothing and owing no one. This is impractical at best, if not entirely impossible, as no one truly knows exactly when they will pass on. Frankly, most of us would prefer to leave a legacy behind for our loved ones to pass on family heirlooms, meaningful items, property, money, or other assets. This is one reason many people choose to have a Will. Having a Will that is prepared for you and clarifies your wishes can simplify the probate, if there is one, and will facilitate carrying on your legacy.
In today’s day and age, the internet can help you do just about everything much more quickly and efficiently. You can pay your bills, schedule appointments, and even shop for just about anything. However, not everything that can be done on the internet should be. One such task that should be left to the professionals is drafting your Estate Planning documents, especially your Will.
Internet Wills can be rather dangerous. They can be improperly made, thus rendering them invalid. Even more frightening, having such an invalid will, but not knowing that it is useless, can lure you into a false sense of security for the future. Here are some of the things that could be wrong with your Will if you use the internet to make it yourself:
Failure to Name an Executor
Some online Wills will focus solely on who receives your property once you pass on. However, for any probate to go smoothly, it is important for a person to be put in charge of your affairs. Therefore, ensuring that you have appointed someone to handle your Estate once you have passed is vital. Otherwise, family members may fight over who is to be in charge, and the process may become lengthy and painful.
Another issue could be failing to name a secondary executor. Life can be unpredictable, and it is not uncommon for an executor named in a will to be unwilling or unable to serve in that capacity once it is necessary. They might have even died by the time that you do. Therefore, naming someone else to handle your affairs ensures that even if your first choice is unable to do so, your probate will be handled more smoothly because there is a second option.
Failure to Name a Guardian
As a young parent, you don’t imagine that your children would ever need a guardian. It’s more likely that your children will all be adults by the time that you pass on, and that they won’t need anyone to care for them. However, it’s quite common to see parents who have not thought to name guardians for their children. When this happens, the Court will give them to the person they see as best fit, even if that person isn’t someone you would have chosen. To ensure that the people you believe would best care for your children are left in charge, it’s important to name a guardian.
Lack of Instruction for Care of Body
While it isn’t important to some people, many people feel very strongly about how their body be cared for after their death. Many are against cremation, while others have the same negative feelings about burial. Sometimes, family members might not know how you felt once you’ve passed on. They could even have opinions themselves about it that conflict. Therefore, in order to save them the struggle of figuring out your wishes or arguing to decide for you, it is better for everyone to include this in your
Improperly Witnessed or Unwitnessed Execution
Not everyone is aware that in order for a Will to be valid in the United States, it needs to be signed in the presence of a registered Notary. Even fewer people realize that often times if the will is not witnessed by two or more parties, that the Court could deem the Will invalid.
Overall, preparing your own Will can seem easy, but in reality it just gives you a false sense of security. With the amount of ways that a Will could be made wrong, the best option is to leave it to professionals.
Want more information on why Wills and other Estate Planning documents are important? Check out some of our other Blog posts: