Estate Planning: Florida Wills
A will is an essential part of your estate plan. Your will is a written legal document that specifies how you want your assets to be distributed after you are gone. It must be filed with the Florida Probate Court upon death. The court then supervises the distribution of your assets.
Many people incorrectly believe that if their estate is modest and not subject to estate taxes, there will be no need for probate. This is a misconception! Any estate where assets must be distributed through the provisions of a will is subject to probate, regardless of whether the estate is taxable.
If you die without a will (intestate), the State of Florida determines how your assets get divided, and who your beneficiaries will be. A judge will decide who handles the administration of your estate. If you're like most people, you'll want to plan so that the state doesn't make these important decisions for you!
Read on for more information about your Florida will.
Who Should Be Your Personal Representative?
Your Personal Representative will be required to report periodically to the Probate Court. Selecting a Personal Representative (or co-Personal Representatives) is easy for some people, harder for others. You must evaluate the individual's level of responsibility, time constraints, etc. If you're thinking of appointing several co-Personal Representatives -- all your adult children, for example -- you must assess whether they can work together amicably. You must also consider Florida restrictions on who may serve. For example, Florida allows you to choose a Personal Representative who resides out of state -- but only if that person is a relative. The elder law attorneys of The Karp Law Firm can help you think through these issues so you are comfortable with your choice.
If You're In a Second Marriage: The Elective Share
Under Florida law, the spouse is entitled to 30% of the augmented estate. The augmented estate includes both probatable assets and non-probatable assets. You may leave your spouse more than 30%, but this is the minimum required by law. A spouse may waive the elective share in a prenuptial or postnuptial agreement. This is a common arrangement in the case of second marriages, when spouses want to be sure their children from prior marriages ultimately inherit their assets.
For those with minor children, a will is the only way to appoint a guardian for your child in the event of your death.
Assets Co-owned or With Beneficiaries Can Pass Outside Your Will
Assets that are co-owned with someone else, or which are titled payable on death to a designated beneficiary, are not governed by the terms of the will. These assets pass by operation of law, outside of the will. This is an important distinction. For example, let's say your will states that your assets are to be divided equally between your son and daughter. Let's further assume that you have named your daughter as a joint tenant on your bank account because she lives nearby. That account contains the bulk of your assets. Upon your death, the assets in that account will pass entirely to your daughter, by operation of law. The fact that you will requires assets to be split fifty-fifty is irrelevant with respect to that asset.
This illustration highlights one of the problems with maintaining joint accounts: It is difficult to continuously calibrate what is in each brokerage, bank and checking account. It is far easier to have these assets pass under your will. If you have assets that are co-owned or have a designated beneficiary, it's important to keep those designations up to date, and make sure they are consistent with the terms of your will.
A Will is Not a Do-It-Yourself Project!
Wills must conform to Florida state law and must clearly and unambiguously reflect your wishes. While it may be tempting to use do-it-yourself forms, remember that a Last Will and Testament is just that -- it's the last thing you'll do. If a mistake is discovered after your death, you don't get a second chance to make things right! Contact the estate planning and elder law lawyers of The Karp Law Firm for expert assistance.