Last Will and Testaments

A Last Will and Testament is a document you create to instruct how you want your property distributed upon your death. Who gets the house? Who gets which antiques? Who gets a bank account? Who takes care of the pets? These are just some of the questions upon which a will answers and instructs, and just some of the information we will obtain to draft a solid Last Will and Testament that can stand up in probate and prevent challenges to its validity.

Our estate planning attorney in Florida will review your assets and discuss with you what you want with regard to your estate. Making sure your goals for today and tomorrow are met is our personal goal at Overstreet Law, P.A.

What is the Purpose of a Will?

The person creating a Will is known as a testator. The testator devises property and assets to named beneficiaries in a Will. This gives testators far more control over assets – both while they are alive and after they pass away.

As such, the Will serves four general but important purposes:

1. They allow property owners to control what happens to their belongings, even after they die.
2. They incentivize productivity by allowing people to control what happens to their property after death.
3. They protect the decedent's heirs, including minor children by appointing a guardian.
4. They allow you to appoint who you want to oversee the estate.

In order for the Will to work as intended, it must adhere to proper procedures in accordance with state law.

Intestacy: The "Default" Method if You Die Without a Will

If someone dies without a Will, this is known as dying "intestate." Should a person die intestate, the state will step in and distribute any property. There are two key reasons to create a Will, rather than relying on intestacy laws to devise your property, and the reasons relate to family and probate matters. 

Family

Intestacy laws aim to pass property in a way that most people would want it to pass, which basically means any property is passed to immediate family members first, like children, then parents, siblings, grandparents, and so on. Intestacy laws only benefit you if you are happy about your hard-earned property going to your immediate family member. 

The problem here is that if you have stopped a relationship with a family member, that may not be taken into consideration when the State steps in to disburse your assets. This could result in property, (or even the custody of a minor child) passing to a relative whom you would not wish to be a beneficiary and/or guardian.

Probate

Property governed by intestacy law must pass through probate court, first, which can be expensive and time-consuming, leaving fewer benefits and more burdens for your loved ones. That said, a valid Will also goes through probate to implement its provisions. The only difference is a well-crafted last will and testament will go through probate rather quickly and without incident because it's harder for someone to challenge it. 

Further, there are other ways to distribute property according to your wishes while also avoiding probate completely. Speaking with an estate planning lawyer will help you determine what will work best in your specific situation and with your specific assets.  

The Risks of “Do-It-Yourself” Wills

The expense and lack of control that comes from dying intestate, coupled with the perceived costs of hiring a lawyer to write a will, has led to a huge increase in the use of “do-it-yourself” wills. These forms, often found online for a fee, claim to be just as good as a traditional will prepared by an experienced attorney. 

These "one size fits all" documents, however, are not tailored to your unique circumstances. The process to create a DIY will is often accompanied by mistakes that open the door for challenges to the validity of a Will upon your death. In fact, a court may dismiss the Will completely.

When Should I Change My Will?

Estate planning is an ongoing process. People should at least revisit the terms of their will every year, even if only to reaffirm them.

However, there are some life events that should lead people to make a change, which include:

• Divorce
• Marriage, remarriage
• A new child, grandchild, or stepchildren
• A serious and permanent falling out with someone who is to receive property in the will
• Receipt of a significant amount of property or money since you last wrote your will
• Relocation to a state that sees marital property as community property to one that sees it as common law property, or vice versa

Any of these events can drastically alter your final testamentary intentions or can make the current terms of your will unworkable.