By any measure, 2020 has been a very difficult year. However, we can learn from even the most challenging experiences. One thing that 2020 has taught us is that nothing should be taken for granted. Whether it be our own health or the health of loved ones, nothing is certain. As we move closer to the end of the year, when thinking about your New Year’s resolution, consider the benefits of drafting a will to plan for the unexpected.
What Is a Last Will and Testament?
Most people will have heard of a last will and testament, or a will, and understand that it is a legal document that designates where a person’s property will go after they die – to be sure, that is part of what a will does. However, a will is about much more than deciding “who gets what.”
A will is the cornerstone of any Florida estate plan. While, on the most basic level, a will outlines how your property will be distributed, the real value of a will is that it can help spare your surviving loved one from potential disputes while ensuring that your property ends up where you want it to. Whether it be designating beneficiaries who will inherit your assets or naming a guardian of a minor child, wills provide clarity. A will also works in conjunction with other estate planning tools, most notably, trusts.
A Will Helps You Avoid the Florida Intestate Laws
Someone who dies without a will is said to have died “intestate.” If someone dies intestate, their assets will pass on to their family members through the Florida intestate laws. These laws consist of rigid rules designed to be a back-up plan for those who either died unexpectedly or without a will. When the court is overseeing the administration of an intestate estate, there is no discretion in how the court doles out the deceased’s assets. Instead, the court follows a predetermined formula to determine which family members receive an inheritance.
Intestate laws are focused strictly on the legal relationship between a person and the deceased. They are not concerned with the length or quality of a relationship. In the simplest example, someone leaves only children behind. In this case, the children will inherit everything. The same goes for someone who has no children and only a surviving spouse. Of course, this situation is not applicable in most cases. More often, there are many surviving family members. Below is a brief list of examples of how the state’s intestate laws work:
- If someone leaves behind a spouse and children, and their spouse has no other descendants, the spouse will inherit everything.
- If someone leaves behind a spouse and children, and their spouse has other descendants, the spouse will inherit half, and the deceased’s children will inherit the other half.
Generally, intestate laws look to whether the deceased left behind a spouse and children. Of course, most people have other friends or family members they would like to leave things to. However, this will not happen if they do not have a will.
Aside from overlooking other friends and family members, there are other potential problems with the intestate laws. For example, under Florida’s intestate laws, a half-sibling who shares only one parent is considered the same as a sibling who shares both parents. Also, children who were given up for adoption and adopted by another family will not be considered “children” under the intestate laws. In short, the intestate laws are harsh, black-and-white rules designed to ensure that the deceased’s property ends up with their family, rather than with the state. Only in rare circumstances, when there are no known family members, will an estate “escheat” to the state.
You Can Also Name a Guardian for a Child in a Will
In addition to discussing how assets get divided, wills can also be used to name a guardian for a minor child or a child with disabilities. This can be incredibly important, because if someone caring for a minor child dies (and their other parent is deceased, unknown, incarcerated, or otherwise out of the picture), the court will need to appoint a guardian. While the court will do its best to determine the most suitable guardian for a child, failing to name a guardian will prevent a parent from having any say in the court’s decision.
Requirements of a Florida Will
Wills are legal documents. Thus, there are certain elements that a will must contain. Every state has its own requirements when it comes to wills. In Florida, to be valid, a will must meet the following criteria.
- The person writing the will must be at least 18 years old or be an emancipated minor;
- The person writing the will must be of sound mind when they sign the will;
- The will must be signed;
- Two others must witness the signing of the will;
- The will must be written (not oral), and cannot be handwritten.
Reach Out to a Knowledgeable Florida Planning Attorney Today
If you have not yet created a will, or it has been years since you last updated your will, contact the Florida trust and estates attorneys at Beller & Bustamante, P.L. We have over 30 years of experience helping clients with all their estate planning needs. From wills and trusts to powers of attorney and healthcare directives, our dedicated team of lawyers will work closely with you and your family to craft a customized estate plan to suit your unique needs. We also represent clients in a broad range of divorce and family law issues. With our help, you can rest assured that all contingencies have been planned for, so you and your family can be prepared for whatever the future brings. To learn more and to schedule a consultation with one of our compassionate planning lawyers, give us a call or contact us through our online form.