1. WHAT IS A WILL?
A will is a signed writing in which a person (often referred to as the
"testator") directs what is to be done with his or her property after
death. Each state has its own very specific laws as to what is necessary for a
will to be valid in that state.
2. WHO MAY MAKE A WILL?
Any mentally competent person who is at least 18 years old may make a will.
Later proof of fraud, duress, or undue influence by another person or the
testator may cause the will to be invalid.
3. WHO SHOULD HAVE A WILL AND WHY?
Every mentally competent adult should have a will. Here are a few of the
reasons:
a. You can direct how you want your property divided upon your death.
b. You can name the person you want to handle your estate (called the "personal
representative").
c. You can reduce the expenses of administering your estate.
d. You can save taxes.
e. You can nominate a guardian for your minor children.
f. You may provide for a trust for the support and education of your children
or the support of some other person without the necessity of costly court
proceedings.
4. MUST A WILL BE WITNESSED? MUST IT BE NOTARIZED?
In Florida, the signing of a will must be
witnessed by two competent persons, who also must sign the will in front of the
testator. Although the law does not
require a will to be notarized, it is highly recommended practice, followed by
most lawyers. If the testator's and witnesses' signatures have been notarized,
with what is called a self-proving affidavit the will is presumed to properly
executed and is accepted by the court without testimony from the witnesses.
5.HOW LONG IS A WILL VALID?
Your will is valid until you revoke it,
generally either by physical destruction (tearing or burning it up, for
example) or by signing a superseding will or written revocation. If you get
divorced after signing a will, the law may consider the will partially or
totally revoked. If you are married, your spouse may have rights in your estate
regardless of what is provided in your will. IN THE EVENT OF A DIVORCE OR
REMARRIAGE OR ANY OTHER IMPORTANT PERSONAL EVENT, IT IS VITAL TO RE-EXAMINE
YOUR WILL TO MAKE SURE THAT IT REFLECTS YOUR CURRENT SITUATION.
6. MAY A WILL BE CHANGED?
Your will does not take effect until you die; therefore, it can be changed at
any time during your life, as long as you are mentally competent.
Traditionally, wills were changed by an amending instrument called a
"codicil," but with the development of modern word processing
technology, it is usually better and just as easy to sign an entirely new will
when you wish to make a change.
7. WHAT HAPPENS IF YOU DON'T HAVE A WILL?
If you don't have a will, a state statute directs who will receive your
property, regardless of your wishes. In
general, if you die survived by your spouse and no children, your spouse takes
all. If you are survived by a spouse and
children, ALL of whom are also children of your spouse, your spouse receives
the first $60,000 of your estate and your spouse and children split the rest
equally. If you have children who are
NOT also children of your current spouse, your spouse and your children share
in your estate 50-50. Florida also has
specific laws with regard to the disposition of homesteaded property. In
general, homestead property of a deceased Florida resident consists of up to
160 contiguous acres outside a city limits, or up to ˝ acre inside a city
limits, which is used as the decedent as his permanent residence. If the
decedent is survived by a spouse or minor children, homesteaded property can
NOT be devised to anyone else. In general, if the decedent is survived by
a spouse and minor children, the surviving spouse takes a life estate in the
property and the minor children take the property at the spouse’s death.
These laws do not apply to property held as tenants by the entireties, which is
property held jointly by husband and wife, in that specific form of
ownership.
8. IS JOINT OWNERSHIP A SUBSTITUTE FOR A WILL?
In most cases, joint ownership is not an acceptable substitute for a will.
Contrary to popular belief, joint ownership of assets between husband and wife
often results in excessive estate taxes. Joint ownership between parent and
child may foster disputes between family members and cause unexpected and
unnecessary gift taxes.
9. IS A LIVING TRUST A SUBSTITUTE FOR A WILL?
A funded revocable ("living") trust can be a valuable and important
part of the estate plan for many people, but it does not eliminate the need for
a will. If you have a living trust, you will still need a will to dispose of
those assets that have not or cannot be placed in the trust. As useful as
they are, living trusts are not appropriate for everyone. Only your lawyer can
tell you if you should consider one, and only your lawyer should prepare it.
10. WHO SHOULD DRAFT YOUR WILL?
A person who drafts a will must be familiar with the law in order to avoid
the many pitfalls and to comply with the formalities necessary to assure the
will's validity. Only a practicing lawyer is professionally qualified to give
you advice regarding your will, to prepare your will, and to supervise its signing.
PRACTICAL SUGGESTIONS
Planning your financial affairs is a very personal and individual
matter. You should decide for yourself the general purposes you wish to
accomplish, then consult with Carol and any other advisors (accountant,
financial planner, life insurance agent) to plan properly how to accomplish
your goals.
Take these four practical steps to save time and help assure
a sound result:
1. Inventory your assets. List in reasonable detail all
of your property (real and personal) life insurance policies and retirement
plans, with your best assessment of their values.
2. Inventory your liabilities. List all
debts and obligations, including principal amounts, payees and essential terms.
3. List your family members and any other persons whom
you wish to participate in your estate. Determine who might be an appropriate
personal representative, trustee, or guardian for your minor children.
4. Decide what you want to accomplish. Determine what
your objectives are, and to whom you wish your assets distributed.
Then meet with Carol and other advisors to work out the
details and prepare the necessary documents. Be sure to carry your working
papers, list of assets and liabilities, and life insurance policies with you.
Please call our office to schedule and appointment.
At that time, you can decide if you want to have other documents prepared,
including such items as a Power of Attorney and an Advanced Medical Directive
(Living Will).
TAX DISCLAIMER --
Please be advised that I do not prepare wills for estates in which it is
anticipated that the estate will be subject to estate tax. Your estate will
have to pay estate taxes IF the net value of your estate when you die is more
than the exemption which is in effect at the time of the your death. Following
is a list of the current exemptions from Federal estate taxes, based on CURRENT
law-
Year of Death and Amount of Exemption
2007 & 2008 = $2,000,000
2009 = $3,500,000
2010 – As of now, the estate tax is scheduled to be
repealed entirely in 2010. However,
please keep up to date with developments in this area.