FORT MYERS FAMILY LAW ATTORNEY
Estate

Do I Really Need a Will

The 5 Documents You Really Do Need

Clients often ask if a Will is really necessary. The short answer is, Yes.

A will puts you in control of who gets your property and who manages your estate. Through a will you can:

  • Decide who gets your property
  • Decide who will manage your estate
  • Name a guardian for minor children
  • Create a trust to distribute income from your estate
  • Authorize the sale of real estate or other property
  • Make specific gifts to family or charities
  • Decide who bears any tax burden

Without a will, division of your estate can get complicated. Your property will be divided according to Florida law. This can mean your spouse gets all or your spouse gets only one-half, depending on whether or not your children are also your spouse’s children and whether your spouse has children who are not your children. If you do not have a surviving spouse, your children or grandchildren inherit your entire estate. And if you do not have a surviving spouse or surviving children or grandchildren, to your parents. If none of the above, to siblings or their children. And on and on it goes.

There is certain property that generally cannot be transferred by a will. Examples are your homestead property if you leave a surviving spouse or minor child, and any financial accounts that have a beneficiary, or payable on death, designation.

Recently a married couple asked me if they needed wills when all of their accounts and property are jointly owned. The answer is still Yes. Even though all of their property will become the individual property of the surviving spouse, there is still the matter of what happens to the property after that spouse’s death? And if there are simultaneous deaths, there will have to be double probates, in which case Florida law dictates that the property shall be distributed of as if each survived the other.

Make your wishes known and simplify things for your family. Remember, they will be grieving; and if you have made your intentions clear, you will have saved them much stress during this difficult time.

When you make your Will, the Florida Bar recommends considering the following additional four documents:

  • Living will: Florida statutes provide for a written declaration specifying your wishes regarding when to use and when not to use life-prolonging procedures.
  • Durable Power of Attorney: This document can assist a person you choose in the handling your property if you become incapacitated, without having to open a guardianship proceeding in court. This is especially valuable for paying your bills and protecting your assets. A power of attorney is not valid or enforceable after your death.
  • Health care surrogate: Florida law allows you to designate a person to make health care decisions for you when you may not be able to do so. Included in this important appointment is the power to decide when to withdraw medical procedures.
  • Pre-need guardian designation: Florida law allows you to designate a person who could be appointed guardian over you should you become incapacitated and/or over your children should you become incapacitated or upon your death. If you fail to designate a guardian, the court will do so for you if it becomes necessary.

The considerations when making a Will or other pre-need documents have serious legal consequences. Call me today to discuss your needs and what documents are right for your specific situation.

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