When planning for the future of your property after you die, the first thing many people think about is writing out a will. After all, that is the most common way of thinking. “Everyone needs a will”, people will tell you, so your wishes will come to pass. Not creating one leaves things to chance.
Let’s back up a bit. In order to determine if one needs a will, we should first spell out what a will is, and what purpose it serves. According to Wikipedia, “A will or testament is a legal document that expresses a person’s wishes as to how their property is to be distributed after their death and as to which person is to manage the property until its final distribution.” While there have historically been various documents that have been accepted as wills, and there are multiple provisions necessary for a will to be considered valid, at its most basic a will is created by a testator, who is the person whose will it is. They must be of the right age, demonstrate that they are of sound mind (that they have the mental capacity to do so), and that they are doing so of their own free will. It must be signed and dated, beneficiaries need to be clearly identified, and there must be witnesses. Many of the other conditions vary by state.
Your will has the capacity to do various things. According to the Florida Bar, you can direct real estate sales, make charity gifts, create trusts, establish who is responsible for the tax burden, name a guardian for your minor children (and care for them without the expense of proceedings for guardianship of property), and more. If one fails to create a will (also known as dying “intestate”), Florida law has a fixed formula by which your property will be distributed to your heirs. The formula is rigid and doesn’t care if one of your heirs is in greater need than another. Moreover, if you have no legal heirs, your property will go to the state, an outcome that is unlikely to match your desires. Finally, if you lack a will the court will appoint a personal representative to manage your estate, whether you knew that person or not. The cost of probate may be higher as well, as a will tends to lower expenses and reduce uncertainties.
Returning to the question of whether you need a will, the answer should seem obvious. If you have a positive net worth and a spouse and/or minor children, you should have a will. Furthermore, it is in your best interest to have your will drafted by an attorney. Not only will they be able to ensure that your will is drafted correctly according to your unique wishes and will stand up to potential challenges, but they will also be able to advise you on how to best set up your holdings to maximize the benefits for your beneficiaries, including the use of trusts, thus ensuring that your beneficiaries are set up in the best way possible going forward.
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Asset protection is the best way to keep your wealth secured for you and future generations. Find out more about estate planning and how a lawyer can help you secure your family’s future.