The Top Six Reasons to Have a Will

WHERE THERE’S A WISH, THERE’S A WILL
By Molly Carey, Esq.

Imagine this. At the ripe old age of 105, you’re on your deathbed. You’re surrounded by your adult children. You’ve lived your life fully, wholly, your heart is content and your soul at peace. Then, a sudden and terrifying thought occurs to you, striking a panic so fierce it sends your failing heart into a haywire pattern that unnecessarily expedites your body’s demise, not good considering your fragile and delicate state. You're hit with the reality that you've never actually put all your dying wishes in writing! Time slows to a crawl. In a dazed and dreadful way, you're faced with the truth that your eldest daughter may never wear your mother’s spectacular ruby ring you’d always envisioned. You wonder if that shiny baby blue Thunderbird convertible you kept impeccable, would ever be driven by your grandson that you’re so proud of for having passed the bar exam this past summer. Then even more disconcerting, the intruding thought of your darling pet parakeet, Pablo, going uncared for - who will listen to him sing, you wonder. So many racing thoughts, so many dying wishes, yet all potentially unfulfilled. Then, the notion washes over you that abruptly brings you to your tipping point. The possibility of a family fight ensuing over your earthly possessions is too much for your beating heart to bear. Regrettably, remorsefully, ironically, you draw your last breath, wishing now only that you had written down all your dying wishes, and journey on.

The Benefits to a Having a Will

1. You Decide How Your Property is Distributed : This dramatic cautionary hypothetical illustrates the paramount benefit of having a will. You, not the state you live in, will decide who your property is distributed to after your passing. Unless your dying wishes have been reduced to a writing that is compliant with state law, your state's intestacy laws will supersede your wishes.
   
   When someone dies without a will, they die intestate, thereby invoking the intestacy statutes. In Florida, these laws are found in sections 732.102 and 732.103 of the Florida Statutes - they specifically determine how a decedent’s estate is divided under the Florida Probate Rules. Depending on the family you have upon death, the intestate succession laws operate to leave your property to your surviving spouse, and, or to divide it among your children and grandchildren. If you have no direct lineal descendants, then your parents inherit everything, and if they are not surviving, then your estate is split amongst your siblings, or their children if they are deceased. If you have no siblings, the property is split between your mother’s and father’s families, extending to grandparents, aunts, uncles, and cousins if necessary. Only as a last resort will your property escheat to the state of Florida.
   
   Important to know is that Florida law does not permit stepchildren and unmarried domestic partners to inherit a decedent’s property. A will is essential if you wish these loved ones to inherit any part of your estate.
   
   The intestate succession statute allows no room for specific bequests to certain family members or friends. After the debts of the decedent are paid, the remaining property will be distributed per statute. In the above conjectural scenario, the dazzling baby blue Thunderbird would not belong to the grandson you found so deserving. Rather it would be distributed in accordance with the intestacy laws. The adult children could agree to give the car to the grandson, but there would be no obligation.
2. You Can Choose a Personal Representative: When you die without a will, the state of Florida will also decide who is best qualified to administer your estate. This person may or may not be the person you would have preferred to act in this fiduciary capacity. Whereas if you have a will, the person you select because you trust them to handle your affairs with honesty and integrity, will have the preference of appointment as the personal representative in the probate action.
3. You Can Choose Who Will Take Care of Your Minor Children: If you have a carefully drafted will in place, the terms can specify a designated guardian for your children of your choosing, aligned with your values and beliefs. Without this designation, the state will determine who is best suited for the job if there is no surviving parent with parental responsibility. This is likely to be a close relative, however there is no guarantee that it would be a person you would have hand selected.
4. You Can Create a Testamentary Trust Within Your Will: With a well drafted will, you can also create a trust upon your death by naming a trustee over specified property with a designated beneficiary. A testamentary trust is useful when a simpler estate plan suffices. It is created upon death and requires a probate court to establish its validity. This varies from an inter vivos trust that can be used to avoid the probate process entirely and is set up during the settlor’s lifetime. In our hypothetical above, had a will been executed, Pablo the parakeet could have been entrusted to a designated caretaker named as the trustee, and funds directed for the expenses of Pablo’s care, thus ensuring his wellbeing the remainder of his life. The Florida State Legislature specifically recognizes the advantages of pet trusts, which are now authorized per Section 736.0408 of the Florida Trust Code.
5. You Can Provide for Your Funeral Arrangements: Another advantage of having a will is that you can use your will to dictate your funeral arrangements. Florida Statute 497.005 (43) provides that the decedent has first priority to make these arrangements, and one’s will is a perfect place to leave these written directions.
6. You Can Always Amend and Revoke Your Will: You are never bound to a will that you have previously executed. Oftentimes, significant life changes warrant updates to our estate planning documents to adequately address our new wishes. Through amendment, one can update beneficiaries, change the distribution of assets, change the designated personal representative, amongst other things. A will can be amended by way of a codicil, which literally translates to, a short writing, or a new will can be created which will then become the controlling will. Regardless of how the changes are made, it is essential that the new will or codicil(s) are executed with the formalities required under Florida Statute 732.502 to avoid a challenge to the will or a finding of invalidity by the probate court. Strict compliance with a state’s statutes is essential and one of the top reasons to have an experienced lawyer oversee the estate plan process, which should always include a will to capture one’s dying wishes.
   
   Where there’s a wish, there’s a will.

Questions? Contact Molly here.