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If I Don’t Have Any Assets, Why Do I Need A Will?

Estate planning may sound like something wealthy people do to make sure their businesses, mansions, and money go to the people they wish after they die. In fact, it goes far beyond making a will, and it’s something every adult, at every stage of life, ought to do, whether or not they have financially significant assets. Estate planning, especially establishing advance directives and establishing power of attorney is vital to take care of now.

Advance Directives

An advance directive is a legal document that allows you to make choices about your health care before that care is needed. For example, you can set out your instructions for your care circumstances like an accident that leaves you unconscious; whether or not you want to be sustained on life support, and in what circumstances; your desires in case you become terminally ill or mentally ill. You can also establish your wishes for what is to be done with your body in case of your death. Do you want to be an organ donor? Would you want your body donated to a medical school or for research? Most commonly, advance directives for health care are handled through a living will or a health care proxy, which is a specific type of power of attorney, granted for making health care decisions.

Power of Attorney

In addition to health care decisions, you can designate someone to make financial or business decisions on your behalf, if you are not capable. That person you grant power of attorney is called an attorney-in-fact. By planning ahead, you have the opportunity to make considered choices. You can designate different attorneys-in-fact for health care and financial decisions, or choose one person to handle both.

Florida enacted new legislation in 2011 that made changes to the ways power of attorney documents are established and implemented. One important change is that power of attorney documents must now include a much more comprehensive list of authorities granted to the attorney-in-fact. Where the law once assumed that authorities not specifically excluded in a power of attorney document were included, it is now assumed that authorities not specifically included are excluded.

Providing For Children 

If you have minor children, and especially if you’re a single parent, you need to include provisions for those children in your will. You need to make sure you’ve named the people you want to become their legal guardian after your passing, and that you’ve done so in a legally binding way. Likewise, you’ll need to ensure that any life insurance benefits are used as you wish for the support of your children. If you don’t already have life insurance, getting covered will be an important part of planning for the future care of your children.

Estate Planning Is For Everyone

 Estate planning should cover all aspects of your current life, whatever that looks like. In addition to leaving instructions for your own care and finances, it covers issues like care of your pets if something happens to you, and access to your home and distribution of your personal property. That property may not have high monetary value, but there are likely items that hold high sentimental value, and you should be able to decide who should have them by designating beneficiaries and a trusted executor to carry your wishes out. The trust and estate planning attorneys at Overstreet Law, P.A. can guide you through the process of making an estate plan that covers the important matters in your life today, and into the future. Call or contact us online for a consultation and to learn more about estate planning for your specific stage of life.

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Estate Planning Is Twice As Important In A Second Marriage

Preparing a will is important for Florida residents of all ages. When you’re planning to enter into a second marriage, or you’re already married for the second or subsequent time, thorough estate planning goes well beyond leaving a simple will, and it’s a critical step in ensuring that your assets are ultimately distributed as you intend.

Your Will May Not Be The Final Word Under Florida Law

While you may have given a great deal of thought and care in preparing your Last Will and Testament, and most people assume that that will be the end of any questions about distributing their assets after they die, there are some situations in which the law overrides your decisions. It’s critical to be aware of those potential issues and create a comprehensive estate plan that takes them into account.

The Florida Elective Share law says the surviving spouse is entitled to at least 30 percent of the estate of their deceased spouse, including their individually owned property, revocable trust, and share of any property jointly owned with a third party. The provisions of this law supersede any contradictory terms the decedent’s will may have included. While you may trust your spouse to set their right to make such a claim aside, and comply with the terms of your will, you should consider the fact that your surviving spouse may not be the one making the decisions in the future. If he or she is or becomes incapacitated, another person may be authorized to make an elective share claim against your estate on your surviving spouse’s behalf, even against that spouse’s wishes.

Florida law pertaining to homesteads may also override the terms of your will, in certain cases. Homestead law allows the homestead to be willed to a surviving spouse or minor child, but not to anyone else, if a spouse or minor child is still living. If your wish is to leave your homestead property to a parent, sibling, or anyone else, you’ll need additional estate planning measures to allow that bequest under the law.

Pre- And Post-Marital Agreements

Both pre-marital agreements and post-marital agreements are signed by both parties, and they provide a way for each spouse to arrange distribution of their estate assets as agreed, without running into situations where state law overrides their plans. It’s a common misconception that this type of arrangement and contract is only for wealthy people with large, complicated estates, but in fact, a pre- or post-marital agreement can make planning modest estates smoother and more secure, too.

Trusts And Mutual Wills

By coordinating the terms of their wills, and placing assets in a trust, couples can create a situation where each is assured that any children from previous marriages will be provided for as intended. This type of preparation reduces the chance that a surviving spouse might change their will after the first spouse dies, or that a situation might arise where state law would apply in a way that violates the terms the spouses agreed to.

Establish And Review Your Estate Plan 

Estate planning is not a one-and-done matter. If you’ve already begun your estate planning, it’s wise to have those plans reviewed periodically, and any time your desired bequests change. The attorneys at Overstreet Law, P.A. have decades of experience helping people with estates of all sizes plan for the future. Call or contact us online to schedule a consultation to get started on your estate planning, or a review of the plans you’ve already made.

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Problems With Online Wills

You can find just about anything online these days and that include wills and estate planning documents. It can be very tempting to create your will online. It’s a quick process, you can do it from the comfort of home, it remains entirely private, and it costs less than consulting an attorney for help drafting a last will and testament.

However, online wills are not the right choice for everyone and may be more expensive in the long run. Here are some of our concerns with online wills.

 Considerations Before Completing An Online Will

  1. It’s a generic document. Online wills are generic forms that may not meet your needs. The rigid wording may make it impossible to properly manage your assets or have your last wishes fulfilled. These generic forms are not a good option if you have assets that will make your estate subject to the estate tax, if you own a small business, or if you have a complicated family tree involving re-marriages, stepchildren, properties in multiple states, or if you think someone might contest your will. In general, the more complex your estate, the greater the need to consult a wills and trusts attorney.
  2. It’s easy to overlook important details. Since online wills are so generic, anyone who uses one runs the risk of missing important details specific to their own situation. Meeting face-to-face with a wills and trusts attorney will ensure all of the relevant questions are asked and the details specific to your life are included in the will. Wills made with the assistance of an attorney will also include a residuary clause. This clause is a catchall for anything not expressly mentioned in the will. Not all online wills offer this clause.
  3. It may not remain current. Sometimes wills are made and forgotten. Without the oversight provided by an attorney it’s possible that heirs born after the will was made could be cut out of the will inadvertently. A will should be considered a living document, subject to occasional review and amendments, particularly when major life events occur. Births, deaths, marriages, divorces, and property acquisition are all examples of events that could change your wishes regarding your estate. An online will service will not check in with you occasionally to ensure your will is up to date; an attorney will.
  4. It may not be valid. Most jurisdictions have specific requirements regarding the language contained in wills and how they are to be executed. With 50 states, the Commonwealth of Puerto Rico and other U.S. territories, it is critical that the will be valid in the jurisdiction in which it was executed. If the will is not valid your estate will be treated as if there is no will and property will be divided according to the intestate laws of your state rather than your will.

Generic Forms Are No Substitute For Professional Advice From A Wills and Trusts Attorney

The point of creating a will is to protect your loved ones and help manage your assets upon your death. While do-it-yourself wills may appear to offer you a way to accomplish this task on your own, this is definitely a buyer beware and a “you get what you pay for” type of situation. Online wills are generalized to meet the needs of the most people possible. That means they may not accomplish your specific objectives; they are not a suitable substitute for an estate plan.

Having your will prepared by a qualified attorney is more affordable than you might realize and comes with the peace of mind of knowing that the document will meet your exact needs and takes into account all facets of your estate and family situation. The cost of having a will professionally prepared by a wills and trusts attorney at Overstreet Law, P.A. is well worth the protection it provides and can save your beneficiaries many headaches after your death.

Contact us at 407.847.5151 to learn more about our will and estate planning services and discuss your situation or arrange a consultation online.

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Locating Paperwork: Important Documents To Find Upon The Death Of A Loved One

Once the shock and surprise of a loved ones death eases, there is work to do. Namely, paperwork. It’s important to locate all of the important documents your loved one had in order to expedite the closing of the estate, but many people have no idea where to even begin. To help make the process easier for you, we’ve created this list of important papers that you’ll need to find after the death of a loved one.

Checklist of Important Papers

Death Certificates. You will need multiple original copies of the death certificate to submit to the Probate court, financial institutions, and life insurance companies, etc.

Estate Planning Documents.

  • Last Will and Testament and Codicil(s). Must be originals.
  • Living Trust and Amendment(s).

Asset Information.

  • Financial Account Statements
  • Life Insurance Policies
  • Real Estate Deeds
  • Auto and Boat Titles
  • Stock and Bond Certificates

Business Documents. These documents only apply to business owners.

  • Corporate, LLC, or Partnership Documents
  • Financial Account Statements
  • Vehicle Titles
  • Contracts such as leases, loans, and employment agreements.
  • Income Tax Returns

 Contracts and Agreements.

  • Pre- and Postnuptial Agreements and amendments
  • Mortgage/ Promissory Notes owed to the deceased person
  • Property Leases

 Bills.

  • Mortgages, Loans, and Lines of Credit
  • Real Estate Tax Bills
  • Medical Bills
  • Funeral Bill
  • Credit Card Statements
  • Utility bills

 Tax Returns.

  • Personal Income Tax Returns.
  • Business Tax Returns (if applicable)
  • Gift Tax Returns

Consult An Estate Planning Attorney For Assistance After The Death Of A Loved One

Planning ahead is one of the best ways to stay ahead when a death occurs in the family. We strongly encourage all families to create a file of important documents, passwords, and/or where to find this information upon their deaths. Doing so will make the passing easier on loved one who are left behind to manage the estate and will greatly ease an already stressful situation.

For help developing an estate plan, creating a will or trust, or managing probate, contact the estate planning attorneys at Overstreet Law, P.A, online or by calling 407.847.5151.

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