Every estate plan, from the simple to the most complex, should include a Last Will and Testament ("Will"). The reasons for having a Will include: 1) naming a Personal Representative to oversee your estate at the time of death; 2) designating a Guardian(s) for your minor children; 3) designating the beneficiaries who will receive the assets of your estate; 4) setting forth the terms and conditions under which your beneficiaries will receive your estate; and 5) setting forth any special terms to govern the administration of your estate.
The consequence of not having a Will are that the designations set forth above, including appointment of a Personal Representative, identifying Beneficiaries, identifying Guardians and prescribing how and when your estate will be distributed, all will be determined by a probate court according to applicable Florida law. By having a Will, you are able to make these decisions yourself rather than having a court do so.
With every designation or appointment made in a Will, it is advisable to name a primary designee and then at least one alternate or contingent designee. For example, if spouses name each other as Personal Representative, they should name an alternate in case they die simultaneously. The same can be said for appointment of a Guardian for your children. Naming an alternate guardian is important in case the primary designee is unwilling or unable to care for and raise your children.
Often in a Will, there will be included language which creates a "testimentary trust." This is a trust that only goes into effect at death and is used to hold estate assets until a beneficiary reaches a certain age. Having such a trust can avoid having a beneficiary inherit assets before he or she is ready or able to manage them. The testamentary trust is most often used when a person has benenficiaires who are minor children or who are not responsible with money.
In Florida, we have a statutory provision that states that if a person places a provision in their Will allowing them to designate beneficiaries of tangible personal property (like jewelry, furniture, etc.) on a separate writing, then that writing will be honored. This allows someone to list items they wish to leave to various persons without specifically putting it in their Will. Such a provision in the Will gives freedom to make these designations without having to modify your Will everytime you wish to change the beneficiary of such tangible personal property.
One of the most widely misunderstood aspects of a Will is with regard to probate. Stated simply, a Will does not avoid probate in Florida; it merely provides a "roadmap" for the probate court to follow. If you wish to avoid probate, you need to consider other estate planning techniques, including having a Living Trust.
For additional information or to discuss preparation of a Last Will and Testament, visit: www.linslawgroup.com
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(c) Copyright 2008 Michael Lins, Attorney
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