Estate planning is the process of providing for the care of your loved ones and disposition of property following your death or disability. Estate planning is necessary to ensure that your wishes regarding health care and property are honored during your life and that your loved ones are taken care of when you are gone.
The purpose of this research guide is to demystify estate planning principles and the Will making process. This research guide describes a Last Will and Testament in detail including; its requirements, when you should make a Will, what a Will can and cannot do for you and your loved ones, and the different avenues of estate planning.
It is important to understand that a Last Will and Testament is a legal document that allows you to
(1) Name one or more individuals or entities to manage your estate upon your death,
(2) Provide for the transfer of your property upon your death, and
(3) Name one or more guardians for your minor children.
Historically, a Will referred to a legal document that disposed of an individual's real property while a testament disposed of an individual's personal property. Today, both real and personal property are disposed of under a single document; thus giving rise to the popular title of "Last Will and Testament."
Here you will find important information and resources related to Estate Planning, Wills, and Trusts in Florida. Located on the tabs are different resources - case law, statutes, databases, journals, websites, etc. Click on a tab and a page will appear, listing specific resources about Estate Planning in Florida. From these pages, you can follow links to other resources, search AMSL’s Online Library and electronic journals; as well as, download appropriate Florida forms.
This guide provides a basis of understanding about Will formation under Florida law.
What is the purpose of a Will?
“A Will allows you to decide what happens to your money, possession and property after your death.
A Will is a document containing your last wishes and the directions for the distribution of your assets after your death. The requirements for a valid vary by state but typically include your signature, the signature of witnesses and a clear statement of your intent to distribute your property. You are not legally required to have a will, but your will may help protect and provide for your loved ones after your death.
A Will speeds up the probate process and can help you protect your assets from excessive taxation upon your death.”
What Does a Will Not Do?
“A Will does not govern the transfer of certain types of assets, called non-probate property, which by operation of law (title) or contract (such as a beneficiary designation) pass to someone other than your estate on your death. For example, real estate and other assets owned with rights of survivorship pass automatically to the surviving owner. Likewise, an IRA or insurance policy payable to a named beneficiary passes to that named beneficiary regardless of your will.”
What happens if I die without a Will?
“If you die intestate (without a Will), your state's laws of descent and distribution will determine who receives your property by default. These laws vary from state to state, but typically the distribution would be to your spouse and children, or if none, to other family members. A state's plan often reflects the legislature's guess as to how most people would dispose of their estates and builds in protections for certain beneficiaries, particularly minor children. That plan may or may not reflect your actual wishes, and some of the built-in protections may not be necessary in a harmonious family setting. A will allows you to alter the state's default plan to suit your personal preferences. It also permits you to exercise control over a myriad of personal decisions that broad and general state default provisions cannot address.”
What is the difference between a Living Will and a Last Will?
“The basic difference is that a last will is used to dispose of assets after death. A living willcan be used to provide health care instructions in advance, such as whether or not life support is desired.”
What is a power of attorney?
“A power of attorney lets you appoint someone you trust to handle important financial and legal matters on your behalf either immediately or only if you are unable to make decisions for yourself.”
What are the reasons I should create a Will?
“To appoint a guardian for your child, to protect your business and assets, to decide who will receive your assets, to provide for a charity, to simplify a complicated process at a very difficult time for your family. To save family time and money, to make provisions for loved ones, and to name an executor.”
Do I need a lawyer to create a Will?
“You can write a will yourself; however, you should get legal advice to ensure its interpretation and proper formation under your states law.”
What is an executor and what do they do?
“An executor is the person who is responsible for settling the estate after death. Duties of an executor include:
Most important, the executor is legally obligated to act in the interests of the deceased, following the wishes provided by the Will."
ABA and Legal Zoom
“The term estate plan actually refers to a variety of tools that are used to manage your property and provide for your loved ones after death. These tools work in combination with each other to achieve your overall goals. The most common tools are wills, trusts, life insurance, powers of attorney, and living wills. A qualified estate planner can use these tools to:
· Provide for the guardianship and financial support of your children
· Ensure that your property will be distributed how you like, with minimal legal hurdles
· Avoid the costly and time-consuming probate process by using revocable trust and survivorship accounts
· Minimize estate taxes and administrative expenses
· Provide cash for your heirs to pay estate taxes and administrative expenses through trusts and life insurance
· Dictate your decisions regarding your own health care should you become incapacitated through medical powers of attorney and living wills”
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The material on our research guide’s website is intended to provide only general information and comment to our clients and the public. This research guide is created for educational purposes only. Although we make our best efforts to ensure that the information found on our website is accurate and timely, we cannot, and do not, guarantee that the information is either. Nor do we guarantee the accuracy of any information contained on websites to which our website provides links.
Do not, under any circumstances, rely on information found on our website as legal advice. Legal matters are often complicated. The law changes frequently and varies from jurisdiction to jurisdiction. Being general in nature, the information and materials provided may not apply to any specific factual and/or legal set of circumstances. For assistance with your specific legal problem or inquiry please contact a knowledgeable lawyer, who practices in your area of need and would be pleased to determine whether she or he can assist you. The State Bar Association is ordinarily a good source for referrals for competent attorneys.
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