A quick Q & A for will considerations!
Q. What is a will?
A will is a handy legal tool used to provide gifts of your estate to your loved ones or to entities, charitable or otherwise, in a controlled fashion. They can be modified or revoked at any time during one’s life, and can be set up in such a way as to prevent complicated situations in cases of the unexpected passing of a devisee. If you ever change your mind about your will in part or in whole, be sure to give your attorney a call! Florida has specific rules about destruction as a method of revocation, and any modification to the body of the will.
Q. Who can make a will?
Anyone can create a will, so long as they are of sound mind and either over the age of 18, or are legally emancipated.
Q. Do I even need a will?
You may or may not. This is exactly why consultation with an experienced attorney can help make such an important decision.
Whenever a person passes away without a will, the state of Florida imposes certain default rules of automatically passing down pieces of your estate, based on state statute.This is known as “Intestacy.”
The general order of succession is based on surviving relatives, and goes like so:
If there are no surviving spouse, Children
If there are no surviving children, Parents
If there are no surviving parents, Siblings
If there are no surviving siblings, Grandparents
If there are no surviving grandparents, Aunts or Uncles
If there are no surviving aunts or uncles, then to their descendants.
If none of the above people exist at the time of the decedent’s death, the order if repeated with the spouse’s relatives taking the place of the decedent’s.
If there is absolutely no one left under the Florida Intestacy Statute who may take from the estate, the estate escheats to the State of Florida.
Q. How do I create a valid will?
A will must be in writing, signed by the testator and two witnesses who sign in the presence of the testator and each other. Any competent person can act as a witness, whether or not they are an interested party or have a stake in the will (although this is not a good idea!).
Q. What kind of gifts can I leave?
1. Anything you own essentially. Money, various accounts/insurance policies, and specific things. You can create a separate writing, or codicil, detailing the various things you own and who you’d like them to go to.This can be kept with you, and you can modify it as you please, so long as your will makes reference to its existence (however there are specific rules and things that you cannot leave with this writing, why again you should hire an attorney!).
Q. Can I leave anyone out of a will? Can I give gifts to anyone?
Generally speaking yes, you’re not required to bequeath anything to anyone. But Florida has special rules about beneficiaries and does not follow the Uniform Probate Code regarding beneficiaries and challenges to the will. You aren’t allowed to exclude a would-be beneficiary if that beneficiary decides to contest your will or any of its provisions; this is known as an In Terrorem clause, and they are illegal in Florida.
Q. What about my wife or husband? That old fogey doesn’t deserve a penny!
The only real answer to this question is to get a divorce. Whether or not a surviving spouse is provided for in a will, they may have the option to take an “elective share” of the estate (although a prenuptial or postnuptial agreement could also exclude the spouse)
Q. How’s my will taken care of when I’m gone?
Generally speaking you would appoint a Personal Representative in your will, and this person can be any non-felon, non-minor in the State of Florida, or a blood relative if they’re out of state. Legally adopted children or parents also qualify.
Whether you decide to make a will or not, make sure to see an attorney for a consultation to figure out what’s best for you, and how best to make your posthumous wishes come to pass in an easy and effective manner. Try to come up with all kinds of questions or scenarios, and we’ll give you guidance on all of them!
Call us today for a free consultation.
The Law Offices of Tara David, P.A.
2401 East Atlantic Blvd., Suite 200
Pompano Beach, FL 33062
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