Planning for your end-of-life can feel overwhelming and complicated, so people often avoid it. But by waiting to create the documents you need, you risk being unprepared if the unexpected happens.
Making your last will and testament–commonly known as a will–does not have to be difficult, especially if you get the support of an experienced, professional lawyer.
For more than twenty-five years, The Law Office of Gary M. Landau, P.A., has helped clients draft their wills to exactly reflect what they wish to do with their assets after they are deceased This is an important way to help your family members and heirs avoid confusion about what you wanted, maintaining harmony at this emotional and stressful time.
Here are answers to common questions about wills from Coral Springs, Florida, wills lawyer Gary M. Landau:
How Can I Create a Will in Florida?
A will is a legal document that must be created in accordance with Florida law.
A comprehensive will:
- Defines each heir and the percentage of your wealth you wish to bequeath to them. (Florida law protects spouses and minor children, preventing them from being entirely disinherited.)
- Names a personal representative who will help settle the estate after your death. (If a non-relative, this must be a Florida resident.)
- Names a legal guardian who will care for your children if they are minors when all parents pass away. This is one of the most important reasons for young couples with children to make a will.
- Must be signed in front of two witnesses who are not beneficiaries.
Wills do not need to name individual assets you possess, unless you plan to make specific bequests, such as leaving a vacation home to a fishing buddy or a special piece of jewelry to your favorite niece.
What Happens If I Don’t Create a Will?
If you die without a will in the state of Florida, the courts will distribute your assets based on the formulas created by law. This is known as dying intestate. This means judges, rather than you, determine who gets your assets.
If you are estranged from a grown child, for instance, that child will inherit part of your estate even if you do not want them to. Or, say you bought one of your grown child a house during your life and had planned to deduct that amount from their portion of your inheritance; if you die intestate this will not be done.
And if you have no immediate living family members and want to leave your money to charity, the courts will instead give your assets to your nearest relative, who could be a cousin or nephew you never see.
Do I Need an Attorney to Create a Will?
Legally, you do not need an attorney to create a will.
However, experts strongly recommend you use one with experience drafting wills. This is because a will must exactly follow Florida law to be admissible in court. You don’t want your heirs to discover that your will is inadvertently invalid after you are gone and unable to fix it. We have dealt with many clients over the years in this situation, sometimes with financially tragic results..
There are forms people can buy or find online to draft a will themselves. But these are sometimes adapted from other states with different laws and may not stand up in a Florida court.
Using a will lawyer with years of experience can help prevent future complications and ensure that your wishes will be met.
Do I Need a Will if I have a Living Trust?
A revocable living trust is a legal document where all of your assets are in the name of a trust rather than in your personal name. After you pass away, the successor trustee takes over the trust and controls the assets.
When people create a living trust, they must move all of their assets into the trust. This includes transferring property deeds to the name of the trust as well as brokerage and bank accounts and the like.
Often, assets purchased after the trust is created are not funded into the trust. This is why it is crucial that even if you have a living trust you create a will as well, often referred to as a “pour-over” will.
People often create a living trust thinking this will help them avoid the probate process, but in many cases certain assets need to be probated anyway because they were not transferred into the trust. Having a will in addition to the trust ensures your assets will go to the people you want them to.
Are There Some Types of Wills Not Recognized in Florida?
The state of Florida is very specific about the types of wills they will recognize.
For example, the courts will not honor a holographic will, which is a handwritten will without witnesses.
It will also not accept an oral will, even if the person the will was spoken to offers to swear in an affidavit what they heard the person say.
Out of state wills drafted in complete compliance with another state’s laws are considered valid in Florida. However, it’s always best to consult with an attorney to ensure that all provisions of the will are accepted here. For example, if your New Jersey will names a local personal representative who is not a relative, that person will not be able to serve in that role if you moved to Florida and did not alter your will.
What Other Documents Should I Ask a Wills Attorney to Draft?
In addition to your last will and testament, your attorney should also draft the following two documents, which are crucially important near the end of your life:
- Living will. This document enables you to request not have aggressive end-of-life care such as being put on a ventilator if it is clear you will not recover.
- Healthcare power of attorney. This names the person who will make medical decisions in the event you are unable to. Say you have no living spouse and have three grown children. Which one would you want to be determining whether you should undergo surgery or be put on certain medicines if you are unconscious? A healthcare power of attorney takes the guesswork and arguments out of your children’s hands.
My firm has created an additional document which is not required but many families find helpful. Called “My Last Emotional Wishes” this free downloadable four-page form allows you to share your emotional and spiritual desires for when you near the end of your life. This includes such wishes as whether you want family to talk to you or just sit in silence, the kind of music you’d like played as you near your death, and how religious a service you want at your funeral.
You can download this free form at the bottom of the home page of The Law Office of Gary M. Landau, P.A..
How Can I Find a Wills Attorney Near Me in South Florida?
If you want an experienced, knowledgeable, and compassionate lawyer to help you draft your will, contact the Law Office of Gary M. Landau, P.A for a free consultation.
We can work with you in person, over the phone, or on a Zoom call to talk about your options.
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The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction.