Last Will & Testament
A will (also called your last will and testament) is a legal document that allows you to state what should happen with your assets after you die. It is important to remember that a will is a must for every estate plan, but it should always be used with other estate planning tools such as trusts.
Your Will should specify who gets what, where they get it from (e.g., personal estate), and include any special notes, You must sign it in front of 2 witnesses, and a notary public, an attorney who drafts your will or estate plan, will be able to provide two witnesses and a notary as a standard part of their services.
Since wills are legal documents, they can be contested. Declaring your last wishes in a will ensures that your estate goes to the intended people, and no one else tries to break the law by stealing it for themselves.
Without wills, state laws dictate who gets what – which means you could lose control over exactly how your belongings are distributed. It’s also more difficult to make sure things are done correctly without a will.
A Will not only benefits you when you die, but wills can also give your family peace of mind while you’re alive! Did you know that a will becomes a public record after death when filed for probate- this means that anyone can see what’s in your last will and testament.
Because wills are legal documents, it’s important to have an attorney draft and help you execute the will to ensure a will is completed in accordance with the state’s laws.
An attorney specializing in wills and estate planning can help you protect your family, plan for the future and give you peace of mind knowing that what’s yours will go where it should go after death.
Who Should Create a Will?
The short answer is anyone who has assets. A last will and testament are not only for the wealthy it’s also for anyone who has family or friends they care about.
Whether you are single, married without children, married or unmarried with grown children, a recent widow, or widower, you should have a will if you have an estate.
What Are the Types of Wills?
Simple wills are prepared with minimal estate planning. In simple wills, you can choose to give everything away, keep it all for yourself, or split the assets up however you want. Many people use simple wills as a springboard to get more detailed about their estate plan and then have simple wills revoked in favor of a more complicated will down the road.
Living wills are most often used for medical decisions. A living will give you the power to make decisions about your future medical treatment, and they can help avoid unwanted living situations.
Testamentary Trust Will
Testamentary trust wills are one of the most flexible wills and provide a series of options and controls for distribution and administration, depending on your plans, and are often used as part of an estate plan to protect assets from probate. Still, testamentary trust wills can also be used for asset protection, estate tax planning, and creditor protection and are also used to give assets to minors (through a Testamentary Guardian). A Testamentary Trust Will comes with a separate trust document from your will, which states how the testamentary trust will operate.
A joint will is also known as joint tenancy with the right of survivorship. A joint will provides each party with an equal or disproportionate share of the estate and goes into effect upon death, unlike a marital property agreement which can be executed during the marriage. Under joint tenancy, joint owners have joint control of the property. The joint owner generally cannot sever joint tenancy without the joint tenant’s consent, which means the joint owner can’t take sole possession of joint assets.
Joint wills are typically used with non-marital partners, but they may also be used by married couples with children from a previous relationship to ensure that joint assets go to their joint children.
A joint will is often required for joint bank accounts, joint investment accounts, and joint property. This type of joint ownership can be very convenient because both joint owners have equal rights to use the property, but the joint will come with certain risks that need to be considered. For example, if one joint owner dies, the joint will automatically pass to the surviving joint owner.
If one joint owner becomes incapacitated or unwilling to cooperate in joint ownership of property, it may be difficult for the other joint owner to access the joint account. Both parties also revocable joint wills unless each party signs an agreement that sets forth their rights in joint ownership. If you consider joint wills, it’s important to understand the risks of joint ownership and how it will work to protect your interests.
What Happens if you Die Without a Will?
Without a will, your property will be transferred to the state where you live by intestate succession. Intestate succession means that it will be divided according to laws of descent and distribution.
Those who have a will have some control over how their assets are divided after death. In contrast, if you die without a will, your property will be divided among your relatives, as set out in the laws of descent and distribution.
If there is any disagreement or dispute between family members about who should receive what, the court system will handle it, which could leave your family with unnecessary legal fees.
These laws will differ from state to state, so it’s important to consult with an estate planning attorney about what will happen without a will. If there is any disagreement or dispute between family members about who should receive what, the court system will handle it, which could leave your family with unnecessary legal fees.
It’s important to note that if you move to another state after executing a will in your original state, your will no longer be valid in the new state even though it may be legally valid in the state where you executed.
Each state strictly governs wills, so it’s important to seek legal advice before executing a will if you move and ensure you leave an executed will with an attorney who can ensure that your estate goes where it should go after your death.
What is Probate?
Probate is a legal process where the will is submitted to your local court and reviewed by a judge. Probate often takes several months, depending on the exact circumstances of your death and where you live.
What is the Difference Between a Will and a Trust?
If you own a home or any other property, you will need to determine whether a simple will or estate plan with trust will benefit your family and loved ones most.
A will serves as a written document that ensures your assets will be passed on per your wishes. At the same time, a trust is designed to help protect the assets from certain types of challenges such as, but not limited to: creditor fights, will contest, or a divorce, and taxation.
It is important to note that a will does not control how assets will be managed during your lifetime and will not manage the assets after your death.
A will is typically used in conjunction with an estate plan that includes a trust. The will specifies where the assets will go, but the trust will determine how the asset will be managed and controlled after your death.
In conclusion, a will states who will receive what you own after you die. On the other hand, a trust helps protect your assets from challenges and determines how your assets will be managed after death.
What should a basic will (estate plan) include?
A basic estate plan if you reside in Florida should include at a bare minimum the following documents:
- Durable Power of Attorney
- Healthcare Directive
- HIPPA Release
If important to consult with an estate planning attorney to determine if you need a basic estate plan, a more comprehensive plan that includes a revocable living trust, pour-over will, durable power of attorney, healthcare directive, and HIPPA release, and may include a preneed guardianship if you kids or complex estate it may require advanced trust planning.
Why Use an Estate Planning Attorney?
An estate planning attorney knows the specific laws and requirements of the state you reside in, can explain the laws of descent and distribution to ensure your estate doesn’t go to the wrong people and can help reduce or eliminate estate taxes and can help ensure that an estate plan is executed upon death.
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