FAQ - Wills, Estates and Probate

Why do I even need a will if my spouse/children are listed as beneficiaries on everything I have?
Many issues can arise if a person dies intestate, or without a will. Complications with the distributions of the estate, including matters of property inheritance and gift tax laws are just a couple. For example, Florida law has property owned between husband and wife as tenants by the entirety, which means that if one spouse dies, the other inherits the property and owns it solely. This might cause complications if the surviving spouse was not the intended beneficiary of the home or other assets, or if the children were supposed to receive some portion of the value of the home or assets not specifically named under the status of "beneficiary" without a will. Having a will can avoid confusion or surprises after a family member dies. A will can also save taxes, appoint guardians and/or trustees for children, and protect the surviving spouse's property interests.

What does it mean to probate an estate?
Probate is the process, through the court, of proving if a will, if there is one presented, is valid, clearing the estate of any debt, and making sure that no one challenges it. With or without a will, an estate must go through probate. Having a will, however, aids in cutting costs and the time involved with the court system. It saves costly litigation and may help resolve or eliminate family disputes.

How much does it cost for a will?
It varies, depending upon the needs of the individual. Because of the various types of wills (e.g. living and last will), structure of assets, and beneficiary needs, length and complexity will be determined on a case by case basis.

What is the difference between a living will and last will?
Basically appropriately named, a living will determines what happens to you in life and a last will determines what happens to your estate upon death. A living will is used to make your wishes known regarding life-prolonging medical treatments in the event of incapacity. This will alleviate any confusion regarding your treatment should you become terminally ill or be in a persistent vegetative state. They typically do not become effective until your doctor certifies your condition as stated above. A last will is a legal document that determines the distribution of your estate upon death. Without a last will, the laws of the state will decide what to do with your property, and may distribute assets to various relatives, including cousins and remaining heirs.

Why can't I just use the will templates I find on the internet?
State probate law can be somewhat complicated, and each state has its own law different from the next. Having a will that is specifically tailored to your personal needs by a licensed professional is generally a better alternative than filling out a template. Despite the ease of finding these online templates, an attorney is able to place the appropriate language in the will to avoid legal confusion and pitfalls associated with the subtleties and of state laws. An attorney can also make significant recommendations to you regarding the distribution of assets, and ensure that your family is taken care of after death. A licensed attorney may also be able to recommend alternatives to a will that can secure your assets before death, such as the establishment of a trust, or a living will, in the event of an unforeseeable accident or severe medical condition. An attorney is best suited to answering whether you need a living will, a trust, or a last will; each covers specific aspects of your estate and will ease the overall process of distributing your assets, prevent unwanted beneficiaries, and ensure that your wishes are carried out, in the event of death.

What is a trust and when should I set it up?
A trust is a relationship in which a person, a trustor, transfers something of value, an asset, to another person, the trustee. He or she will then manage and control the asset for the benefit of a third person, a beneficiary. An asset is any kind of property. A significant benefit of the trust is the avoidance of probate. However, there are other considerations to be taken into account to determine if a trust is advisable. Assets and property within a properly drafted trust typically don't have to pass through probate. A trust should be established based on the value of assets, and is typically discussed during estate planning. A trust can be established during life, or used to distribute assets as an alternative to a will upon death. There are several types of trusts, including revocable, irrevocable, and living trusts.

What is a guardianship designation for minor and when do I need it?
A guardianship designation for minor is a legal document that states who you want to raise your children, should something happen to you and your spouse. Without designating a guardian, the court will decide custody, and it may be contrary to your wishes. It should be established very early in your children's lives, to ensure their well-being, but can be established at any time. Usually guardianship designations for minors are drawn up simultaneously with a will, which creates a legally binding document. They can be also be drafted without a will, but are vitally necessary if you have children.

Can you explain a Durable Power of Attorney?
It is a document that gives someone you, the "principal", trust the legal authority to act on your behalf. It can be revoked by the principal at any time, or upon death. This power of attorney is called "durable" because it is still effective even while you are incapacitated, or before, if so desired. Without a Durable Power of Attorney (DPOA), a regular power of attorney would become useless when your family needs it most, i.e. when you become incapacitated. In Florida, you may structure a DPOA to only become effective upon proof of incapacitation.