Wills Under Florida Law – Experienced Melbourne, Florida Attorney with an AV Rated Law Firm
A Last Will and Testament, is a document that should be prepared by a wills attorney, that states what you want to happen to your property after your death. Any asset that you own in your individual name will transfer under your Last Will and Testament. There are different types of Last Wills & Testaments. Here is a brief description of the most common types of wills: simple wills, complex wills, wills with testamentary trusts, and pour over wills.
What is a Last Will & Testament? Types of Wills Explained By Experienced Wills Attorney, Eve Travis, Melbourne, Brevard County, Florida
Simple Wills: Most wills are “simple wills”. A simple Will states that: “I want to leave everything to my spouse” or that “I want to leave everything to my children”.
Complex Wills: A “complex will” is just a will that is more complicated than a simple will. A complex will may have many beneficiaries receiving a certain dollar amount or percentage. A complex will may leave a tithe to your church or a donation to a charity on your death. Anything more complicated than the basic “to my spouse” or “to my kids” language is technically a complex will. Don’t be scared of the term complex will. Many times the cost is the same as a simple will.
Wills with Testamentary Trusts: Sometimes your Last Will & Testament states that you want to make a trust on your death and you describe the terms of that trust right there in your will. This is called a “testamentary trust”. Because this type of trust is created under your Last Will & Testament, it doesn’t exist until your death. That makes the trust easy to change or get rid of if you need to. I use testamentary trusts for parents with minor children who want a cheaper alternative to a stand-alone trust document. Testamentary trusts can also be used to create a special needs trust for Medicaid planning. Testamentary trusts do not offer the privacy or incapacity planning advantages of a stand-alone trust, but it can be a great, economical option for younger parents who will likely amend their estate plan throughout their lifetime.
Pour Over Wills: If you have a stand-alone trust that you created during your lifetime (sometimes referred to as a Living Trust, Revocable Living Trust or Irrevocable Living Trust), you will want to have a “pour-over will”. A pour over will is a document that says “I want everything else that I may own to go to my trust”. This protects you by transferring to your trust any asset that you forgot to title in the name of your trust before your death. This means that property will still be managed or distributed under the terms of your trust. Without this pour-over will, any asset that you forgot about would be distributed to your heirs as decided by Florida law. This may be very different than what you wanted.
Guardian Selection in a Will: A very important reason to have a Last Will & Testament is to nominate a guardian for your minor children. Who would you choose to take care of your children and the property you leave them? Make your opinion known. This is one of the best things you can do to help avoid different family members fighting over this issue. You can nominate a separate person to handle your children’s money than you nominate to take care of their daily needs.
A lot of people try to draft a will by themselves using internet forms. One of the main problems with these types of do-it-yourself wills is that it is your responsibility to get the will signed correctly. This can be a problem even if the will is custom drafted for you. If the execution is not completed or not done right, the will is invalid and a waste of money. This happens more often than you think. If your will is invalid, Florida law states what happens to your assets. This is called “Intestacy”. This is particularly problematic for second marriages. For example, under Florida intestacy laws, a surviving spouse only receives 50% of their deceased spouse’s estate if they have children from prior marriages. The other half will go to the deceased spouse’s children. This can be devastating to couples with limited assets. What if you and your significant other are not married and you do not have a will? Florida law doesn’t give them anything under intestacy.
I see a lot of heart-breaking results from people that have DIY wills or no wills at all. The saddest part is that a will drafted by a good attorney is not very expensive in the first place and you get so much more, including possibly avoiding probate. Remember, you can’t fix a mistake after your death. Take the time now to consult with an attorney about what is the best will option for you. Talk about what you can do to make things easier for your family. Consider not only what happens on your death but also how to make things easier on your family if you become incapacitated or unable to manage your affairs. Your family will be grateful that you took the time to get your affairs in order.