Is there anything more dramatic than when a famous person dies without a will? Whitney Houston, James Gandolfini, and Leona Helmsley all famously passed away without clear directions about their sizable estates. Even without the large amounts of money acquired by a famous singer, actor, or hotel heiress, we all have estate planning needs that can keep end-of-life matters a little less dramatic.
How do you know if you need a will or a trust? It is always better to establish an estate plan earlier rather than later in life. With the trusted guidance of an Estate Planning Attorney near you, you can determine which method is most reasonable in relation to your assets and goals. A basic understanding of what a will is and what it can and cannot do is a helpful step toward estate planning decisions.
What is a Will?
A will, also known as a Last Will and Testament, is a document that gives instructions for the distribution of your assets to beneficiaries after your death. It is signed and witnessed and requires a legal process to be implemented. It is filed with the courts, making it a public document, and your instructions are carried out by your designated executor.
Why is a Will Important?
If you want to determine what happens to your money and property after you die, a will is important. If you die without a will in Florida, the state dictates who will inherit your property with the Florida Intestacy Statute. This determines the line of succession starting with your spouse if you are married and your children if you are not. If you are not married and have no children, it goes back up to your parents and then out to your parents’ children (your siblings) and so on.
What is the Difference Between a Will and Living Will?
A will gives directions regarding what to do with your property after you die. A living will applies when you are still living but only due to artificial means. A Designation of Healthcare Surrogate appoints a person to make health care decisions after incapacity and to carry out the end-of-life wishes if you do not have a living will.
A will is often kept locked up until death for privacy. However, a living will should be easily accessible and discussed with family. This important document outlines the individual’s end-of-life wishes regarding such measures as hydration, nutrition, and various artificial life-supporting apparatus. The living will states how and when artificial means of life-sustaining treatment will be provided or withheld. Additionally, it is signed by the maker and two witnesses. Some law firms also notarize this document.
Tough Conversations for a Living Will
There are a lot of uncomfortable conversations that come with aging. Organ donation can be a very personal decision and is appropriate to include in a living will. These wishes can be included in the discussion of life-sustaining treatment and acted upon immediately upon death, unlike directives in a will. A will may not be read immediately, which could mean decisions were already made regarding organ donation without the benefit of your wishes.
What Doesn’t Work as a Will in Florida?
An oral will, also called “deathbed wills” or nuncupative wills, are not written but spoken by the individual nearing death. While it fits in the dramatic theme of wills, an oral will is not valid in the state of Florida. Also not valid? The list of items you scrawled on a napkin or outlined on a document with directions for who gets what. Dramatic? Yes. Effective estate planning? Not at all.
What Should a Will Include?
A valid will in the state of Florida has specific requirements. The testator (maker) must be at least 18 years of age and in sound mind. It must be written, witnessed, and notarized as provided by law and follow all the formalities. And, finally, it must be proved valid in probate court.
- List of assets (can be but are not required)
- Appointed executor
- Appointed guardian of children
A trust facilitates the transfer of assets to heirs, but your will speaks to the guardianship of children. Regardless of your financial resources, a guardian for your child should be named in your will. You can name the same person, or different people as “Guardian of the Person” and “Guardian of the Property.”
Can I Include My Pets?
You can provide for the care and concern of your pets in your will, but you can’t leave them any money or property. For those with a passion for their pets, including a plan for their welfare is a big part of the peace of mind estate planning can give. Use your will to assign and fund a guardian or organization to provide the best care possible for the remainder of their lifetime.
What is Best NOT to Include in a Will?
If you have chosen to execute both a will and a trust, it is important to get the guidance of an experienced Estate Planning Attorney. Many of the financial items addressed in a trust are best not duplicated in a will. Any conflicting information in the documents can cause confusion and delay.
Things to Not Include
- Accounts with named beneficiaries
- Properties held in trust
- Business interests
- Real estate that you don’t want to go through probate
What is More Powerful than a Will?
In general, a trust will take precedence over a will if items are titled in the trust. But in terms of estate planning, it isn’t really an either/or question. For small estates, a will may be the least expensive and most effective choice. Larger estates may be better served by using a trust with a pour over will. Understanding the benefits of both is why estate planning is an important conversation with your Elder Law Attorney.
Regardless of your estate size, it can be hard to know what type of estate planning is best for you. A conversation with a trusted Estate Planning Attorney near you is an essential part of creating a plan that will work best for you and your family. Keeping your aging plan updated as your life stages change is as simple as a phone call to your estate planning attorney.
Thoughtful specialists with a depth of experience in estate planning are the reasons why Elder Law Attorneys are one of the Resources We Love. Read more about wills and trusts in the Legal and Financial Section of our Blog.