Almost everyone knows what a Will is. In Florida, a valid Will is a Will that was made and executed for a resident of another state, in compliance with that state's requirements. In other words, if a Will is valid in the state it is from, it will be valid in Florida. Another way to have a valid Will is for a Florida resident to have their Will drafted and executed in this state, with all formalities required by Florida law. This means that a Will must be signed by the testator or testatrix, at least two witnesses and a notary, all at the same time and in the presence of one another. The testator or testatrix (the person making the Will) must have “mental capacity” to execute a Will. This means he or she must understand who their family is, have a general understanding of the extent of his or her possessions and understand that executing a Will will distribute that property in the way that the Will directs after the testator or testatrix's passing.
But do you know how a Will is used?
Of course, your Will does not become effective until your passing. So long as you have the required mental capacity, you can change your Will as many times as you want during your lifetime. After a person's passing, his or her Will is presented to the local court. The court case that is then opened is called probate administration, or probate for short. Depending on the size of the estate, use of an attorney may or may not be required by law. The court supervises the entire probate process and certain actions, including some real estate sales and distribution to the beneficiaries, must be approved by the court. In most cases, a formal probate takes around 12 months. Many things need to happen in the course of probate administration: formal notice must be given to all interest parties, including creditors, notice to creditors must be published in a local newspaper, accounting and inventory must be filed with the court, any unresolved tax issues must be taken care of, and the list goes on.
What happens if I die without a Will?
Florida legislature has decided how most people would want their possessions handled after their death. In a simple family situation, a person's entire estate goes to their spouse. This is not true if there are children not mutual to both spouses. If there is no spouse, then the entire estate passes to the children. If there are no surviving children, then the estate passes to the grandchildren. If there is no spouse, no children, no grandchildren or great-grandchildren, then it passes to the parents. And if the parents are also not living, then to the sibling(s).
So when a person passes without a Will, his or her property are distributed in the above described manner. This is also done through court-supervised probate administration.
So, do I need a Will?
If you want your property distributed after your death in a manner described above, then you may not need a Will. However, all families are different, and the distribution that Florida law dictates may not be right for yours. Some family members may need the money more than others. You may feel like an estranged child does not deserve to inherit from you. Whatever your personal situation is, I suggest you discuss it with an Estate Panning Attorney.
Do I Need a Last Will and Testament?
In my opinion, this is the most important part of this article. YES, there is a way to avoid the expense, delay and hassles of probate. This is accomplished by properly titling your assets during your life time. This can be done in a way that allows you complete access and freedom to manage and sell your assets, including your home, during your lifetime. Most importantly, this allows for a simpler, quicker and less expensive way for your assets to pass to your beneficiaries when the time comes.
What else is important?
A few years ago, before I went into the hospital to have our baby, I drafted and executed a Power of Attorney and a Healthcare Surrogate Designation, allowing my husband to easily make financial and healthcare decisions for me. The way I saw it, you never know what can go wrong, even during a routine hospital stay. I wanted to relieve my husband of additional burdens of a legal process should something go wrong.
As an estate planning attorney, I firmly believe that a Power of Attorney and Healthcare Surrogate Designation are the most important documents one can have in place. Both of these unburden your family in the event of your mental or physical incapacity.
Why do anything at all?
Death of a loved one is an awful time in anyone's life. The legal process only adds stress and the paperwork is plain burdensome. Estate planning is relatively inexpensive and highly effective in doing your family a favor by getting all of your affairs in order.
Natalia Bevilacqua is a Florida licensed attorney. Her office is located in East Delray Beach and her practice is focused on Estate Planning and Probate Administration. Natalia can be reached at (561) 877-1515.