What is a Will?
This article is intended for informational purposes only and not intended to be legal advice.
Per Florida Statute 731.201, a “Will means a testamentary instrument, including a codicil, executed by a person in the manner prescribed…, which disposes of the person’s property on or after his or her death and includes an instrument which merely appoints a personal representative or guardian or revokes or revises another will. The term includes an electronic will as defined in s. 732.521.”
In summary, A Will is a written, legal document which sets out how you would like your property distributed, and to who, upon your death. A Will also assigns a person known as a Personal Representative to execute your wishes. Many other states call this person an Executor. Your Personal Representative is designated to ensure your wishes are set out as you desire. Additionally, if you have minor children, a Will allows you to designate a legal guardian who will take care of your children, their finances, and assets in the event you pass away prior to them attaining 18 which is the age of majority in Florida.
Although it may be difficult to for some to talk about, Wills also allow you to lay out burial instructions. Without designating your wishes regarding your final arrangements, it may lead to costly, lengthy disputes between family members as to how to handle your remains. This can also include what you would like on your headstone, memorial services, funeral preferences, and how expenses related to your funeral and burial should be paid.
During your lifetime, you can amend your Will, known as a Codicil, or even revoke it and have a new Will prepared. In Florida, Wills must be in writing and executed within the formalities required by law. Once you have properly executed your Will, nothing more is needed except that you should check it every so often to ensure it is still within your wishes. Wills alone do not avoid probate administration.
Why is a Will important?
Everyone’s situation is different and particular reasons for needing a Will is specific to that person. In general, a Will is important to memorialize your wishes and avoids the State of Florida dictating who your assets go to upon your death. If you do not have a Will, your estate, which includes all of your assets, will be distributed per Florida’s Intestacy Statutes. Assets will be distributed as the law says it should be, rather than how you would prefer assets to be distributed.
What happens with the Will?
When you pass away, your Will is filed with the court. Once your Will is filed with the court, it becomes public record. In order to avoid designations in your Will from becoming public record, you can set up a Trust so that your Will is drafted as a Pour-Over Will. Instead of naming specific beneficiaries, a Pour-Over Will names your Trust as a beneficiary of any assets that were not already placed into your Trust, leaving minimal information in the Will. There are many other reasons why having a Trust drafted could be beneficial to your circumstances.