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What is a Will and Do I Need One?

The prospect of estate planning can be daunting. There are different instruments – wills, trusts, powers of attorney – and they can be difficult to understand. It can be complicated to figure out which instruments are best for you. A good place to start is to understand your options.

What are wills?

Wills are instruments that allow someone to designate how their property will be distributed at the time of their death.

Why should I get one?

If someone dies without a will, their assets and property will be distributed according to state law. The state law governing the distribution of assets and property for people who die without a will is known as intestacy law. Typically, these laws allow for distribution to immediate family members first, and if none are living, then more distant relatives. If there are no family members who are related closely enough, then the property will automatically go to the state – a process known as “escheatment.”

According to Florida intestacy law, children and spouses will generally be the first family members to inherit. If a person dies with a spouse but no children, their spouse inherits all of their assets. If a person dies with children but no spouse, the children inherit all of their assets. If a person dies with both a spouse and children, the amount that each inherits depends on whether the spouse is the parent of the children. If a person dies with no spouse and no children, that person’s parents inherit all of their assets. Based on the Florida statute, it would be incredibly rare for your property to escheat to the state. Your property will only escheat to the state if you do not have any living family – such as grandparents, aunts or uncles, great aunts or uncles, nieces or nephews, cousins.

What do they do?

For the most part, a testator (or a person who makes a will) is able to use the will to distribute property in any manner that they choose, with certain exceptions. Wills can vary greatly. Some can be a straightforward designation of to whom each asset will pass upon the owner’s death. Others can include more complicated provisions, such as provisions that:

  • Create a trust or trusts;
  • Designate a guardian for your child or children; and/or
  • Designate an executor for your estate.

Wills don’t allow you to distribute all of your property. Some assets that cannot be distributed by will are:

  • Property that is part of a living trust;
  • Life insurance proceeds;
  • Funds in a retirement account; and
  • Jointly owned property.

How do I prepare one?

Wills are generally required to be in writing and signed in front of a witness or witnesses. According to Florida law, the person writing the will must sign, or have another person sign as a proxy, at the end of the will. The testator must either sign the will, or acknowledge that he or she signed the will, in the presence of two witnesses.

How do I get started?

If you have questions about preparing a will or making other estate plans, it is important to seek out legal advice. Contact our estate planning attorneys at the Millhorn Law Firm today. We can support you, advise you of your options, and guide you through the process.

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