Most people, at some time, have contemplated the need to create a Last Will and Testament. Nevertheless, taking the steps to do so seems to be something we continuously put off. Though the reasons behind this reluctance vary, many times it is simply due to some unanswered questions concerning the benefits of having a Last Will as part of an overall estate plan.
What happens if a person dies without a Last Will?
Contrary to popular misconception, when a person passes away without a Last Will, so long as even the remotest of next of kin is still alive, the State of Florida does not take all of their property. If a Florida resident dies without a Last Will, Florida’s intestacy laws will, however, control and direct how that individual’s probate property is distributed. With no Last Will to rely upon, the intestacy laws are basically a guess by the State of Florida as to what “most people” might want done with their property once they die. The problem is that in most situations the “State imposed” plan is never exactly according to what an individual would have reflected in a written self-directed Last Will and Testament. For instance, many married couples are in a second marriage and have children from a prior marriage. In such a situation, with no Last Will saying otherwise, Florida’s intestacy laws provide that only one-half of the deceased spouse’s probate property passes to the surviving spouse, with the other one-half passing to the deceased spouse’s descendants.
Does a Last Will control all property a person owns at death?
Generally, the property that is disposed of by a Last Will and Testament is property which is solely owned by an individual at the time of his or her death and which does not have a pre-determined beneficiary or survivor designation (i.e. probate property). For instance, where a life insurance policy has a designated individual beneficiary, the named beneficiary receives the life insurance proceeds as a result of the life insurance contract and not as a result of the person’s Last Will and Testament. Similarly, 401(k) plans, IRAs and similar arrangements which have a named designated beneficiary will determine who receives those benefits at death, and not that person’s Last Will and Testament. Jointly owned property with “rights of survivorship,” such as joint bank accounts with survivorship rights or jointly owned real property with survivorship rights, automatically passes to the surviving joint owner as a matter of law on the death of one joint owner. If a person fails to designate a beneficiary or the designated beneficiary dies first, or if jointly owned property is not structured with rights of survivorship or the other joint owner dies first, then the death benefits and the portion of the jointly owned property owned by an individual at his or her death would pass under that person’s Last Will and Testament. Having a valid Last Will and Testament in place is an important part of the estate plan in order to provide for the passing of death benefits or jointly owned property in those described situations.
Is a Last Will and Testament only for people who have a lot of money or property?
A Last Will and Testament is important no matter how much money or property an individual might have. A Last Will and Testament insures an individual that the money and property he or she does leave behind are distributed to those specific individuals he or she wants to be benefitted by the gift. Every individual who owns any property at the time of his or her passing, dies with an estate plan in place. The important issue, however, is whether that individual’s estate plan is one which is controlled by the individual’s express wishes and desires, or whether that individual’s estate plan is one imposed by the State’s laws through default for lack of planning.
Besides controlling the manner in which an individual’s property passes at his or her death, there are other significant benefits from having a valid Last Will and Testament. For example, without benefit of a Last Will to direct a Court, the laws of Florida will determine who a Court appoints as personal representative to administer that person’s probate estate. A Court could determine to appoint a professional administrator, a family member, or someone else; none of whom may be the personal representative the deceased individual would have chosen. Moreover, the Court-appointed personal representative would not have the authority without obtaining Court approval to make many decisions which could have been made without Court order if authorized in a Last Will and Testament, potentially causing the costs of probate to be significantly higher. If an individual has minor children, without benefit of a Last Will directing who they wish to be appointed as guardian of those minor children, the Court would make the determination who to appoint as guardian. Again, the person the Court appoints as guardian may not be the person the deceased individual would have wanted to serve as guardian and may not have many of the same qualities in a guardian the deceased individual would have wanted. A Last Will and Testament can also be an effective means of structuring trust arrangements to not only provide for financial needs of children during their minority, but also providing for a controlled and planned-out system of financial assistance into adulthood with a defined distribution plan at designated age levels.
How a Last Will fits into an individual’s particular estate plan depends on that individual’s peculiar set of circumstances. Each individual will need to take the time to consult with his or her attorney to create a Last Will and Testament which best suits that particular individual’s needs and circumstances. The important point is to not neglect planning one’s estate and using a Last Will and Testament as part of a plan structured to protect loved ones and to make certain that one’s property is truly distributed according to his or her specific wishes.