What A Will Can And Cannot Do In Florida

By Author: Stam Bett
Total Articles: 452
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You've probably heard that writing a will is important, if only to take care of legal matters. That's because state law determines who gets your property if you pass away without a will, and a judge may even get to choose who raises your minor children. This is one of the most important documents you will prepare in your life, so it makes sense to consult with a probate attorney in Miami to make sure it's done properly.

A basic will allows you to state in a legally binding document who will receive your property after death, name a guardian to care for your children, name someone to manage your property left to minor children and name an executor, which is someone you choose with the authority to ensure the terms of your will are fully carried out.

Basic wills may be enough for people under 50 who do not expect to leave behind assets valuable enough to be subject to federal or state estate taxes. As you acquire more property and get older, you may want to create a more sophisticated plan with the assistance of a Miami estate planning attorney.

It's important to realize that a basic will is not enough ...
... to keep your estate out of probate in the state of Florida, however. If you leave anything but a very small amount of property in a will, probate court will likely be the result after you die. Probate may take anywhere from a few months to up to a year and easily eat up to 5% of your estate in court fees and attorney fees. This means your beneficiaries may receive nothing until the probate process is finished. If you wish to avoid the probate process, it's important to consult with a probate attorney in Miami about the best way to do this.

There are also many things a will cannot do. While they are simple and inexpensive tools that address many common estate planning needs, there are some things you won't be able to accomplish with them. You cannot use a will to leave certain types of property, including property you hold in joint tenancy with someone else. In this case, your share automatically belongs to the surviving co-owner. You also cannot leave behind property you have already transferred to a living trust, or the proceeds of a life insurance policy for which you are a beneficiary. Money in a pension plan, 401(k) or IRA cannot be left in a will, nor can you leave money in a payable-on-death bank account.

Because wills are usually not read or located until weeks after your death, don't expect to use a will to leave behind funeral instructions. Instead, you should consult with a Miami estate planning attorney to prepare a separate document that spells out these wishes, and make sure your executor knows where to find it.

Again, wills cannot be used to avoid probate, nor can they be used to leave money to pets or leave money for an illegal purpose. You also may not place certain conditions on gifts with a will. This means you can't leave a gift contingent on the marriage, divorce or even change of religion of a recipient, although you can influence smaller matters. You are allowed to leave money to a child "if and when" they attend college, although this can be complicated. After all, who will enforce this condition, and for how long is it enforceable?

Estate planning is a very complex area of law. If you're considering preparing a will, it may help to at least speak with an estate planning attorney in Miami first to learn what a will can and cannot do for you, and if there are other documents you will need instead.

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