Do You Need a Will?

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by Marvin Bingham and Susan Mikolaitis

You might think that a will is only for the elderly to think about, or that it is just for someone who has property or money, but that is not necessarily the case. If you want to protect your family and loved ones, you need a will at any age. Who knows what tomorrow will bring, so get things in order so you know that everyone will be looked after. After all, you don’t want your siblings fighting over who takes your dog nor do you want them burying you next to a relative that you hated.

Why should I have a will?

It will make it easier for those you leave behind in the event you leave any property, valuables or other assets which are titled or held in your name alone.

A will indicates who will be in control of your assets during the probate process, who will have control of your remains, and how your remains are to be handled.

A will creates special instructions to provide for minor children or incapacitated persons who may survive you and need controlled support.

It also includes persons who would not otherwise be entitled to inherit from you, such as step-children, “significant others”, and other friends, charities, schools, or religious organizations.

Through this, you can indicate your choices as to who will inherit your personal belongings, particularly “one of a kind” items such as the family bible, portraits, jewelry, pets, or other tangible personal property.

Lastly, to nominate guardians for any minor children who may survive you, or to disqualify certain individuals from serving in such role.

Does someone with just a little bit of money need a will? Or is this just for those that have millions?

As you can see, a will is about much more than inheriting money, so just about everyone needs a will, and those with significant assets may require more extensive estate planning.

Who needs a trust and why?

A Revocable (meaning you can change it) Living (meaning you create it while you are alive) Trust serves two primary purposes. First, it allows management of your assets while you are alive if you become incompetent due to illness, stroke, Alzheimer’s, etc., and second, it avoids the probate court process after your death for the distribution of your assets to your selected beneficiaries. Trusts are especially useful if you own real property in more than one state, thus often allowing your estate to avoid the required probate in each of those states. Another advantage of trusts is that they allow you to provide instructions to your trustee to support “special needs” beneficiaries, heirs who would lose their benefits if they inherited directly from you, or minor children who may depend on your assets to support them until they reach an age when they can manage their own affairs. Trusts are private and are administered without the involvement of the court. Revocable Living Trusts, however, do not protect your assets from your creditors or creditors of your estate after your death.

Can a will be edited or changed as time goes by?

Absolutely, as long as you are living and mentally competent. Wills should be reviewed regularly and updated if necessary due to changing circumstances, such as deaths in the family, to replace appointed agents if they grow too old or ill to serve as administrators of your estate and to change provisions for minor children who have grown into responsible adults.

What happens to any debt that is owed after you die?

Debt is not inherited, but your assets are subject to sale to pay your debts before your heirs can inherit. In Florida, significant exclusions apply to that rule, including homestead real property passing to your family members and up to $20,000 worth of furniture and household furnishings, and two automobiles if left to your spouse, or children if there is no spouse. Creditors have two years from the date of death to make claims against your assets unless the claim period is terminated earlier than two years by the court proceedings known as probate.

What is the difference in a Living Will and a Last Will?

Night and Day! A “Last Will” is the instrument that takes effect only at your death and the last version you create is the one that counts. A “Living Will” is a terrible nickname for an Advance Directive, which is the legal document by which you state the circumstances under which you want to be allowed to die naturally, as opposed to being kept alive artificially. That directive becomes effective before your death. It is not a “Will” in any sense.

What is a By-Pass Trust and who needs one?

A By-Pass Trust is primarily a device to minimize the effect of the Federal Estate Taxes, which do not apply to estates valued at less than $5 million. While more popular a decade or so ago, the use of the By-Pass Trust has been curtailed by the IRS rules of “portability”, which now allows a married couple to shelter up to $10 million from such estate taxes.

Should I have an executor?

The terms “Executor” (masculine) and Executrix (feminine) were replaced in Florida law by the term “Personal Representative”, to mean the person who is appointed by the probate court to serve as the fiduciary/administrator of your estate during the probate process (typically 6 – 12 months duration). Your will can include the name of the person you nominate to serve as the “PR” of your estate. If you don’t nominate someone, the probate court will appoint one based on the preferences stated in the Florida Probate Code.

If there are minor children should I choose a guardian and should I give them a copy of the Will?

Only the probate court can appoint a guardian, but you can nominate your preference in your will. If you do so, not only should you give the proposed guardian a copy of your will, you should discuss the matter with them in advance to make sure they are willing to serve in that role.

How much does a basic will cost?

It varies from a few hundred dollars on up depending on situations and assets. We are happy to guide you through this. Call us for a brief consultation to determine your estate planning needs.

How will my family know that I wrote a will, do I give them a copy?

Unless there is some reason not to do so, we recommend giving copies to anyone nominated as PR or guardian in the will, as well as to all of the adult beneficiaries. However, keep a list of persons you gave copies to in the event that you later revise your will, so that you can replace the old will with the new.

Can I add funeral arrangements to my will so my family will know exactly what I want?

Absolutely, to confirm exactly what you want and expect. It is, however, advisable to also let them know your wishes before you die, in case no one reads the will until after your funeral or cremation.

What do I do about leaving my jewelry, artwork, and vehicles?

Your will can incorporate, by reference, a list you can create for this purpose that only requires your signature at the end and the date. You can make updates or revisions to this list over time and the only requirement is that you sign and date it each time you revise it. This list is called a Tangible Personal Property List, and it requires no witnesses or notary.

Call our office and set up a consultation. We will be happy to give you a quick idea of what type of will best fits your needs and the cost. Protecting your family and loved-ones will give you peace of mind and that is priceless.

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