Why Have a Will?

I must blog today on one of those things that nobody like to talk about – when you die.  I come today as your friendly neighborhood lawyer.   I have seen too many expensive legal situations that were totally avoidable with a little advanced planning.  So let me ask that tough question – do you have a will?

A Last Will and Testament is a document that legally distributes your personal property and assets after you pass away.  If you have minor children, your Will should include a nomination of guardianship, stating who should take responsibility for your children.  Think through the scenarios:  If you should die before your children turn 18, will your relatives fight over them?  Is there a friend that you would rather ask to care for them?  Who will handle the money they inherit?  How old should they be when get to handle the money themselves?  Leaving those decisions up to chance is risky business.

Here are answers to a few common questions I am asked about basic estate planning:

Is probate expensive and How can I avoid probate?  Probate can be expensive.  It is a weird niche of law where you really cannot represent yourself.  There is an initial filing fee whenever a petition is filed with the clerk of court and probate is no exception.  To avoid probate you would need to have a beneficiary listed on every asset, such as bank, brokerage, and retirement accounts.  This is not practical for assets like the deed to real property (real estate).  So I highly recommend that a beneficiary is listed on every account possible, but a Will is still in place for those items that cannot have a beneficiary listed.

Do I need to list every single thing I own?  No.  Most of us have furniture and other possessions that are worth a little here and there, but not worth listing in our Wills.  Chances are you will have changed couches by the time your Will is probated anyway.  The assets you should be concerned with are those accounts and things that won’t be obvious to someone who is wrapping up your affairs.  If you have specific bequests (like grandma’s ring goes to my oldest daughter)  those should be listed in your Will as well.

If I already have a Will, where should I  keep it?  Your Will should be kept where all of your important documents are kept.  Do not keep your Will in a safe deposit box!  After you pass away, a judge’s order is required to open your box.  To make such an order the judge needs to see the Will.  See the conundrum?

Can I make up my own Will or do I need a professional?  I recommend a lawyer.  There are services available on-line that provide blank templates.  Wills are state specific.  Each state has its own special requirements.  Florida law requires a Will to be signed and notarized in two very specific places.

I hope this helps you prepare for the future and those just in case scenarios.  There is no excuse for not having eased your passing for your loved ones by not leaving them to guess at and likely argue over your intentions.