The Biggest Items To Consider When Writing A Will

What to Consider When Writing a Living Will

Nobody lives forever, so no matter how young or healthy you are, almost everyone should have a valid will. A will determines who gets your stuff. A will determines who watches your kids. A will can keep family members from squabbling after you’re gone.

Without a will, the State determines how your assets are divided, according to very specific guidelines. So even though you may want some money or possessions to go to, say, your stepchild or best friend, absent a will they may not get a thing. It’s that element of control that makes a will so important, even if you don’t have a ton of money.

Here are a few things to consider before drafting this crucial document:

  • Don’t create one on your own. While many websites offer do-it-yourself or cheaply crafted varieties, a will is too important to go discount. (Anyway, having a professional lawyer draft one is not too expensive.) Many wills from these websites are poorly drafted, with ambiguous wording. Sometimes they don’t execute them properly, with the state-mandated number of witnesses or such. Some programs even offer will services that aren’t state-specific, so you could end up with a will that the court won’t accept. And since you won’t be around to redraft fixes to these problems, the court would treat your estate as if you died without a will. To avoid these potential problems, work with an attorney with knowledge of all the laws in your home state.
  • Select your personal representative with care. While many people think their spouse or oldest child should automatically be their personal representative (in charge of managing and disbursing your assets after you die), think clearly if they have the best skills and temperament for the job. A good representative should be detail oriented, trustworthy, fair, and patient (probates can take from a few months to a year). State law places limits on who can be your personal representative; again, a lawyer with knowledge of your state can help you decide.
  • Do a mental inventory of all your assets. You don’t have to enumerate in a will how much money goes to each heir, only the percentage of your final estate. But mentally calculating how much you have, including property, valuable jewelry, artwork, and the like, can help you determine if you have enough to leave a bequest to more than your immediate family. Of course, a will can also specify how you want to handle your tangible property, including any embryos you may have frozen during prior treatments for infertility!
  • Plan for backup beneficiaries. Clients often tell me they don’t want to think about the possibility that their child may predecease them. And while I agree that is awful to contemplate, the truth is your will may not be probated for decades, and anything can happen between now and then. I won’t even work with clients who won’t include a backup beneficiary in their will (e.g., leaving your daughter’s portion to her children if she is not still alive), because this can create a legal mess for the remaining clan.

If you reside in the state of Florida and need additional information about or help with drafting your will, contact us today at The Law Office of Gary M. Landau.

Estate Planning: Why Wills Aren’t Just for Princes

Last WillThe death of the musician Prince is more than just a tragedy of a brilliant life cut way too short. It’s also a reminder that anything can happen at any time, and a cautionary tale for all of us about the importance of drafting a will, no matter how far off death may appear.

According to an article in the New York Times, Prince, who died at age 57 and had no spouse or children, died without a will, a situation legally known as dying intestate. And before you say, “I don’t have the assets that he had,” know that dividing up dollars is not the only benefit a will provides.

If you don’t currently have an updated will, consider drafting one. Here are some reasons why it could be important:

1. A will says who will be the executor of your estate.

The executor is the person in charge of handling the legal process, or probate, after your death. A good executor, who in Florida is called a personal representative, works with an attorney to ensure that your estate is divided up quickly and fairly; a poor one can delay or prejudice the process and stoke friction within the surviving family.

2. A will names the guardian for your children.

If you’ve got young children, having an updated will is crucial. This document names the friend or relative you want to take care of your kids, known as their guardian, until they turn 18, a designation that keeps grandparents or siblings from battling it out after you’re gone. And if you drafted a will and named a guardian when your children were tiny and now they’re teens, take another look to see if the guardian needs changing. When my kids were little, we named my wife’s sister in another state as their guardian, because she was raising kids of her own; once our kids became teens, it made sense to switch it to their local grandparents, so they wouldn’t be uprooted from their friends and school if tragedy struck.

3. A will lets you decide where your assets are going.

Of course, the biggest reason you should have a will is that, without one, it is state law, not you, that dictates who gets what. You may want your best friend to get your new Lexus, for example, but the law states that without a will your assets go to your closest relatives–even if you haven’t spoken to them in years.

If you would like to speak with an experienced estate planning attorney, please contact us at The Law Office of Gary Landau, P.A. Our office is conveniently located in Coral Springs, Florida.

Can wills prepared in another state or country be used in a Florida probate proceeding?

Last WillOften people die either residents of another state or country and own real estate in Florida or they moved to Florida but never changed their foreign will to a Florida will. The question is: Can these wills be used in a Florida probate proceeding after death? In Florida a will must be in writing signed by the Testator (the person whose will it is) in front of 2 witnesses who must sign their names after the Testator.

Generally, if a will is valid in the state or country where the decedent resided at the time the will was executed, than the will be admissible in Florida (with the exception of the holographic will see below). It’s helpful to get an affidavit from a licensed attorney from that jurisdiction to present to the Florida Court that the will seeking to be admitted was validly executed in the originating state.

A holographic will from another state (a handwritten will that was signed by the Testator) will not be accepted in Florida if it doesn’t have the 2 witness requirement even if it is valid in the state where it was executed.