According to Consumer Reports, the majority of Americans do not have estate plans—a concerning statistic when considering just how easy it is to create a last will and testament. Maybe it’s because discussing death is stressful or feels taboo, or because most people assume they’ll have more time. Regardless of the reasons, neglecting to create an estate plan is a huge mistake.
If you are one of the many Floridians who still need to create an estate plan, the William C. Roof Law Group is here to help. This article will provide a comprehensive overview of one of the most well-known estate planning tools in our arsenal: the last will and testament. Keep reading to learn about this document’s purpose, notable benefits, potential drawbacks, and more.
As leading estate planning lawyers in Central Florida, we’ve helped countless clients secure their finances and safeguard their legacies. Ready to approach your estate plan with confidence and efficiency? Contact us online to schedule a consultation.
What Is a Last Will and Testament?
A last will and testament is a type of legal document that is frequently used in estate planning. The person creating the will is called the testator, and they can use this document to assert their wishes about how certain aspects of their estate should be treated upon their death. To ensure this end, the testator will appoint an executor—the person responsible for executing their wishes.
During the process of creating a will, the testator will also identify beneficiaries to inherit assets such as residences, vehicles, collectibles, personal property, and cash. Beneficiaries are often members of the testator’s family, but they don’t have to be; a beneficiary could even be an organization, such as a charity.
Lastly, a will may also identify people for specific roles such as power of attorney, health care proxy, or trustee (if the testator has also created a trust). A last will and testament may even designate legal guardians for minor children.
Reasons to Create a Last Will and Testament
Contrary to popular opinion, a will does not simply leave behind money or real estate, and it is one of the most flexible estate planning documents you can create. In addition to communicating your end-of-life wishes, a last will and testament can perform a wide range of important roles, some of which we will discuss below.
Identifying Guardians for Your Children
A last will and testament gives you the opportunity to plan out and identify the people who should take care of your minor children in the event of your passing. Note that if you do not outline these final wishes in your will, the court may decide to place your children into the custody of other individuals.
Bestowing Sentimental Items
Dying without a will is also called dying in intestate. When this happens, your estate is subject to the laws of intestacy, which dictate how your assets will be divided during the probate process. For most people, having a court decide how to distribute their most valued personal items is not an ideal scenario.
The probate court cannot take into account the sentimental nature of certain items and may award them in a thoughtless manner. For example, you might have a rare hunting rifle that has been in your family for generations. Without this context, the probate court might award this item to a niece who promptly melts it down for scrap metal. Essentially, a will allows you to approach these sentimental items in a careful, nuanced manner, ensuring they fall into the hands of people who will actually appreciate them.
Choosing the Right Executor
Choosing the right executor is an important step in the estate planning process. Often, an executor will have a certain degree of financial knowledge and solid organizational skills. The most important trait of an executor, however, is trustworthiness. Your executor will have a certain degree of control over your estate as it passes to your beneficiaries, which is why it’s important to choose someone you can count on.
Ensuring the Continued Success for Your Business
For an entrepreneur, ensuring the continued success of their business after they pass might be a top priority. Many business owners spend their whole lives building companies from the ground up, putting in decades of hard work. For these individuals, letting it fade away after they pass on is unthinkable. Luckily, they can use a will to issue continued guidance and even appoint the next generation of company leaders.
Disinheriting Individuals
In addition to ensuring your beneficiaries receive their intended inheritance, a will also provides a vehicle for disinheritance. Although it can be a saddening, complicated decision, disinheriting individuals in this manner can provide you with peace of mind. For example, if you have a grandchild with an active drug addiction, you may not want to give them an inheritance that would enable their destructive habit. Disinheriting them might be a necessary decision.
Reducing Tax Burdens
Wills can also help you reduce certain tax burdens for your beneficiaries. While Florida does not have any estate or inheritance taxes, federal estate taxes may apply to high-net-worth individuals. Various tax planning strategies may be able to reduce these burdens, which is why it’s a good idea to discuss them with your lawyer.
Limiting Disputes Among Your Loved Ones
If you pass away without a will, the lack of clarity may spark confusion and conflict among your loved ones. Instead of coming together in their grief, your family may argue over various assets. By creating a last will and testament, you can take the guesswork out of the situation.
What Could Invalidate My Will?
If you’re considering making a will, it’s important to understand that if poorly executed, it could be considered invalid in the eyes of the law. Errors, omissions, and improper validation could render your last wishes irrelevant, which is why it’s important to work alongside an attorney when creating this legal document. Below are a few examples of legal issues that could potentially invalidate your will.
Your Will Is Based on a Spoken Agreement
Verbal or oral wills are rarely valid in court. You might assume that if you carefully explain your wishes on your deathbed, these last words will carry the weight of the law. Although it is technically possible to make a “nuncupative will” without writing anything down, this type of will requires numerous witnesses and are not recognized in Florida.
You Were Pressured to Sign Your Will
According to the National Council on Aging, elderly individuals across the United States lose almost $37 billion each year due to financial abuse. One way that an abuser can take advantage of an elderly person’s finances is by pressuring them to create a new will or alter an existing one. If the court finds evidence of any undue influence regarding a will, it is likely to invalidate it. However, it’s important to note that not all accusations of undue influence are true, and sudden and surprising changes to a will do not automatically invalidate it.
You Lacked the Mental Capacity to Understand Your Will
All contracts are invalid unless signed by people of “sound mind.” It might seem ridiculous to suggest that you couldn’t understand the terms of a will you helped create, but this is one of the most common reasons for legal challenges. After your passing, a family member could potentially seek to invalidate your will by claiming that you lacked the required mental capacity to create such a document.
It is no secret that as people age, they are more likely to experience a certain degree of cognitive decline. If there is any reason to call into question your cognitive abilities, it could form the basis for a legal challenge. This is yet another reason to create your last will and testament as soon as possible. Note that advanced age isn’t the only thing that can affect the soundness of the mind. Head injuries can cause cognitive decline due to brain damage, as well as certain psychological conditions.
Benefits of a Last Will and Testament
As you can see, a last will and testament is useful in a variety of ways. Although the best estate planning tools for you will depend on your specific financial circumstances, goals, and preferences, a last will and testament will almost certainly be part of a comprehensive estate plan. These legal documents offer several benefits, including the following:
- Affordability. Compared to other estate planning tools, a last will and testament is relatively inexpensive, and even low-income families should have no trouble drafting this document alongside qualified a last will and testament lawyer.
- Time-savings. You can draft your last will and testament within just a few hours of working with an estate planning lawyer. Although some wills take longer, creating one is rarely an exhaustive process.
- Peace of mind. Perhaps one of the biggest benefits of making a will is the peace of mind it brings. You can rest easy knowing that when you pass, your assets, finances, and legacy will be in good hands.
Wills are among the simplest estate planning documents to create, and they are extremely effective. However, depending on the size of your estate and the complexity of your assets, it may not be enough on its own. It’s a good idea to ask for legal advice when deciding which tools to employ in conjunction with your will.
Alternatives to a Last Will and Testament
Although a last will and testament represents an effective estate planning tool, there are various alternatives you may wish to discuss alongside your estate planning lawyer. To create a robust, full-spectrum estate plan, you may want to supplement your will with various other legal documents and tools.
Life Insurance Policies
Life insurance is one of the most overlooked estate planning tools, and it tends to be quite popular among high-net-worth families. Although this strategy offers numerous benefits, it can be particularly effective in avoiding excessive estate taxes.
Trusts
A trust is a more complex estate planning tool compared to a last will and testament. It comes in a variety of forms, including revocable trusts (also called living trusts) and non-revocable trusts. Although a trust can accomplish goals that other tools cannot, it should not be viewed as a replacement for a will. Even if you establish a trust, you must still create a last will and testament to provide instructions for the trust.
Joint Titles
Establishing a joint title on an asset can be a simple yet effective estate planning strategy. For example, you may want to list both you and your spouse on the title of your family home. If you pass away, sole ownership passes automatically to your spouse with no need for complex legal arrangements.