All About Wills

While any sort of property may be transferred by writing a last will and testament, there are some particular interests in property which cannot be willed because the right of the owner terminates automatically upon his or her death, or others have been granted rights in the property by Florida law. Some examples of these types of property rights or interests are:

• Except in certain very specific circumstances an exempt Florida homestead (that is, the residence and adjoining lands owned by a person who is survived by a spouse or minor child, up to one-half acre within limits of an incorporated city or town or up to 160 acres outside those limits);
• A life estate: property owned only for the life of the owner;
• Any property owned jointly with another person or persons with right of survivorship (a tenancy by the entireties, which is limited to joint ownership between a husband and wife, would be one of these, as would a tenancy in common, and a joint tenancy with right of survivorship).

It is critically important to understand that property owned jointly with others, including your spouse, and those assets with beneficiary designations, will flow to the joint owner or the beneficiary automatically, through the operation of law, and you cannot change those after death.  Joint ownership and beneficiary designations are simple to use and very effective.  However, using such measure to transfer assets at death can lead to unexpected results.

Planning must be undertaken to deal with such transfers to minor children who cannot own property (resulting in a court supervised guardianship for the property of the minor child).  What happens to the asset if the named beneficiary predeceases you?  What happens if the beneficiary is going through a divorce at the time of your death?  What happens if the joint owner or the named beneficiary is incapacitated at the time of your death?  A careful analysis of your circumstance by our Jacksonville will attorney can help you avoid the potential pitfalls of using beneficiary designations and joint ownership of property.

Must I leave something to my spouse and my children in my will?

A person may not disinherit his or her spouse by making a will, without a properly executed pre-marital or post-marital agreement. Florida probate law gives a surviving spouse a choice to take either his or her share under the last will and testament or a portion of the decedent’s property determined under Florida’s “elective share” statute. This Florida statute uses a formula to compute the size of the surviving spouse’s elective share, which includes amounts stemming from the decedent’s jointly held and trust owned property, life insurance, and other non-probate assets. Because this formula is very complicated, it is usually necessary to refer this matter to a Florida estate planning attorney or a Florida probate lawyer with extensive experience in this area of Florida probate law. Also, if your will was made before the marriage and the will does not either provide for the spouse or show your intention not to provide for him or her, then your spouse would receive the same share of your probate estate as if you had died with no will (at least one-half of your estate) unless provision for the spouse was made or waived in a pre-marital or post-marital agreement.

These, sometimes complex, issues suggests that the assistance of our experienced Jacksonville wills attorney can help you achieve proper estate planning that can avoid these potential problems.  Call us to schedule an appointment to review your personal circumstances at (904) 448-1969, or toll free at 866-510=9099, or email us at Info@TheColemanLawFirm.com

Does a will control all of my property?

Joint tenancies with rights of survivorship can be established when two or more persons title bank accounts and other assets in their multiple names with the intent to have ownership pass directly to the surviving named owners when one dies. A “tenancy by the entireties” is much the same but involves only married persons. These forms of joint ownership can avoid probate of the account or other asset when an owner dies. While this can be very efficient in some cases, use of joint ownership can be fraught with problems at death and cause more problems than it solves. First, you should realize that joint titling only potentially avoids probate at the first owner’s death.  Probate will be necessary when he survivor dies.

Among other unforeseen problems, indiscriminate use of joint ownership can cause an increase in estate taxes over the joint lives of married persons, force double probates in the event of simultaneous deaths, create unfairness as to who pays for funeral expenses and claims against the decedent, raise undesired exposure during life to the debts of co-owners, and cause a shortage of funds for payment of estate taxes which can cause litigation with the taxing authorities.

Before relying on the use of joint tenancy with right of survivorship to avoid Florida probate, you should consult an experienced Florida estate planning attorney to determine whether there are any problems or issues that may impact your estate planning or probate administration that are caused by the use of the joint tenancy form of ownership.  If you have any concerns about the use of jointly titled property, please call your Jacksonville attorney for estate planning at 904-448-1969, or toll free at 888-492-2468, contact The Coleman Law Firm by email so that we can assist you in determining what problems may be created for you and your family through the improper use of joint tenancy ownership provisions.

No. Life insurance is only one kind of property that a person may own and a will is necessary to dispose of other assets that a person owns at death. If a life insurance policy is payable to an individual named beneficiary, the last will of the insured has no effect on the proceeds. If the policy is payable to the estate of the insured, the disposition of the proceeds may be directed by the will, and the life insurance proceeds that otherwise might be exempt from creditors’ claims will be subjected to those claims. Life insurance can be useful in providing cash at death for payment of taxes and expenses, but like most strategies for insurance, the careful person will consult an experienced Florida estate planning lawyer, a life insurance counselor, and a financial advisor. Mistakes in ownership and beneficiary designations in these policies, or in beneficiary designations for retirement plans and IRAs, can cause great increases inestate taxes owed, or potentially the entire asset.  With proper estate planning, you can avoid estate taxes on life insurance proceeds through the use of a life insurance trust, no matter what the value of your estate may be.

If I create a revocable living trust, must I still have a will?

No, in most situations. A revocable living trust may be used in addition to a will. This is because a trust can handle only the property that has been put into it by retitling the asset to the trust. Any property of a person that is not placed in the trust either during life or at death in most instances escapes the control of the trust. It is the last will and testament that controls all property in a decedent’s name at the time of death if the will is drafted properly. Revocable living trusts can be helpful to speed administration and save taxes if they are drafted properly and funded during life with the property intended to be transferred by the trust. Often, however, improperly drafted or incorrectly funded or administered trusts can add to the cost of settling estates, not lower it. Furthermore, it is the probate of the last will and testament that can clear creditors’ claims, which is not possible with just a trust administration.

No, personal court appearances are usually not needed to probate a will. However, documents must be filed with the probate court to procure a probate order and administer estates. In most counties, neither the estate’s Florida probate attorney nor the interested persons ever appear in the courtroom.

A well-drawn will can reduce estate and income taxes that may arise when someone dies. Estate taxes are often by far the largest cash expense an estate can have. There is also the possibility that Congress may increase the impact of the estate tax in the future. In addition, proper estate tax planning must be made for income tax advantages. Proper estate planning with a will is indispensable in taking these benefits in the tax codes. An experienced Florida estate planning lawyer or attorney can help you ensure that you take advantage of all of the tax planning options that are available to you when you make a will.

Do I need a lawyer for estate planning, or can I hire a paralegal or other non-attorney to assist me?

No sensible person would employ “just anyone” to fill teeth, take out an appendix, or deliver a baby. Though you can find free legal will forms online, the person who wants these services performed skillfully with the minimum risk to health, life, property, or the accurate execution of his or her wishes, will engage the services of a trained and experienced estate planning attorney. Except in dire emergency, drafting wills and codicils should not be performed by anyone except the experienced professional estate planning or wills and trusts lawyer.   When you make a will with a free legal will form, or a will form from an online source, you often create more problems than would be present if you had no will.

Will drafting involves making decisions that require professional judgment which can be obtained only by years of training, experience, and study. Only the practicing Florida estate planning or wills and trusts lawyer can avoid the innumerable pitfalls and advise the course best suited for each individual situation. In addition, an experienced Florida estate planning attorney will be able to coordinate the use of other skilled professionals, such as an investment advisor, actuary, insurance specialist, and tax accountant to complete a proper estate plan.

Moreover, there is no such thing as making a “simple will.” Even smaller estates can have complexities only foreseeable by the experienced Florida estate planning attorney.  The Jacksonville, Florida estate planning attorneys and wills and trusts lawyers with The Coleman Law Firm have decades of experience helping their clients deal with the complexities inherently involved in estate planning, drafting wills and trusts, preparing proper beneficiary designations, and avoiding the improper use of joint tenancies.  If you want a thorough analysis of your individual circumstances, an estate plan that helps you control and protect your assets during life, and provide for the efficient transfer of you assets to your family and loved ones, in the manner and at the time that you want, at the least possible cost in taxes and professional fees, then you should contact The Coleman Law Firm in Jacksonville, Florida at 904-448-1969 or email us at info@thecolemanlawfirm.net.

a. Marriage does not cancel a will in Florida, but a spouse from a marriage that occurs after the execution of a will may receive the same portion of your estate that he or she would have received had you died with no will (at least one-half).

b. If you have moved to Florida from another state, it is wise to have your last will and testament reviewed by a Florida estate planning lawyer in order to be sure that it is properly executed according to the laws of Florida, that the witnesses are readily available to prove your will in Florida, and that your personal representative is qualified to serve in Florida.

What is the effect on my estate planning documents if I move?

c. Before your will is effective to dispose of your property, it must be proved in the Florida probate court. If the will is self-proving and otherwise valid, it may be admitted to probate without further proof. If the will is not self-proving, it generally must be proved by the oath of one of the witnesses. The oath must be given before a circuit judge, clerk of court, or a commissioner specially appointed by the probate court for that purpose. (Under certain circumstances, the probate court may permit the will to be proved by other means permitted by law.) A will can be made self-proving either at the time of its execution or later, which saves the time and expense of locating a witness and obtaining his or her oath after your death. For your will to be made self-proving, you must acknowledge the will before an officer authorized to administer oaths; the witnesses must make affidavits before the officer; and the officer must evidence the acknowledgment and affidavits by a certificate attached to or following the will. An appropriate form of certificate is prescribed by Florida law. The self-proving procedure is in addition to the normal execution and witnessing of the will, not in place of it.

d. No matter how perfect a will may be prepared for you, unless it is properly executed in strict compliance with the laws of Florida, the will may be entirely void. Be sure that you execute your will in the presence of your wills and trust attorney, who knows exactly how and in what order the will should be signed.

Is signing a will a formal process?

e. Every person owning property who wishes to exercise control in the disposition of that property when he or she dies, should make a will regardless of the value of the property. Of course, the larger the estate the greater the estate tax consequences and therefore the more important effective estate planning becomes.

f. The following additional legal documents and forms should be considered for signing when you make your will:

• Living Will: Florida Statutes now provide for a written declaration by an individual specifying directions as to use of life-prolonging procedures and end of life decisions. Though there is a statutory form for this document, your estate planning lawyer can help you determine whether to provide for additional directions and guidance beyond what is included in the statutory form.

What is a power of attorney?

• Durable Power of Attorney: A durable power of attorney is a legal document that can assist in handling the property and financial affairs of a person who has become incapacitated without having to open a guardianship proceeding in probate court. This is especially valuable for paying the bills and protecting the assets of an incapacitated person.  Like other estate planning documents, the durable power of attorney should be drafted by your estate planning lawyer so that the document accomplishes your objectives, and protects you at the same time.  When consulting with your estate planning lawyer, be sure to explore the difference between the immediate power of attorney that takes effect immediately upon you signing it and delivering it to your attorney in fact, and the springing power of attorney that does not become effective until a defined event, such as your incapacity.
• Health Care Surrogate: Florida law now allows individuals to designate a person to make health care decisions for them when the individual may not be able to do so. Included in this power of attorney for health care or designation of health care surrogate, is the power to decide when to withdraw medical procedures and treatments.
• Pre-Need Guardian Designation: Florida law allows you to designate a person, or persons, who could be appointed legal guardian over your person or your property, or both, should you become incapacitated, or over your children should you become incapacitated and upon your death. If you fail to designate a guardian, the Probate Court will do so for you, if and when it becomes necessary.