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Benefits of a Will
Many people feel it is not necessary to write a Will because they think it will be too costly or too difficult, or that it is unnecessary because they don't feel they have enough possessions to worry about and that they will automatically pass to their spouse or children. Sometimes people want to simply avoid thinking about their own death. Writing a Will is actually a simple process, when you are being guided by The Will Lawyer.
Writing a Will is important for all adults regardless of wealth, marital status, or age. A well written Will allows you to:
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Be sure that your possessions will be distributed as you wish.
If you die without a Will, the law will decide how your estate will be distributed. Although some property may automatically be passed to a spouse or children, exact distribution depends on the value of the property and the terms of deeds. A Will is the ONLY way to ensure that your wishes will be carried out.
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Appoint and dictate the powers of an Executor and/or Trustee.
Writing a Will allows you to decide ahead of time who will oversee and manage distribution of your estate. By designating a trustworthy and impartial Executor, you will gain peace of mind that the terms of your Will will be honored.
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Appoint a guardian for minor children.
In the event you have minor children, your Will serves as the legal document setting out your desires for the care of your minor children in the event of the death of both parents, rather than leaving it to the courts to decide.
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Specify funeral wishes.
Rather than family members who are under stress making the decisions, you can specify your funeral wishes in your Will.
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Expedite the legal process.
Leaving a valid Will generally makes settling an estate much faster and less costly. Keeping legal fees low protects the value of your property and savings to be passed to beneficiaries.
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Reduce stress and heartache for loved ones.
Leaving a valid Will reduces the stress and heartache for your survivors. Making decisions at a time of grief is not an ideal situation. Handling things ahead of time will be appreciated by all your beneficiaries.
What is a Trust?
A Trust is a fiduciary relationship in which one party, known as a trustor, gives another party, the trustee, the right to hold title to property or assets for the benefit of a third party, the beneficiary. The Trust document will dictate the rights and responsibilities of the Trustee. There are two types of trusts:
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Living Trust (inter-vivos): A trust that is in effect during the trustor's lifetime.
- Testamentary Trust: A trust that is created through the Will of a deceased person.
A Living Trust (sometimes called an “inter vivos” or “revocable” trust) is a written legal document through which your assets are placed into a trust for your benefit during your lifetime and then transferred to designated beneficiaries at your death by your chosen representative, called a “successor trustee.” For example, a trust could be used if a beneficiary is under age or has a mental disability that impairs the person's ability to maintain his or her own finances or care. Possession of the Trust is passed to the designated beneficiary, once he/she is deemed by the Court to be able to manage the funds or assets by the terms dictated under the trust.
A Living Trust Avoids Probate
- A Living Trust avoids probate. This is one of the first benefits and often means a faster distribution of assets to your heirs in as little as a few weeks down from four months to years with a Will. With a valid Will, your estate will have to go through probate, the court proceedings through which your assets are distributed according to your wishes by the executor.
- Notably, both documents allow you to choose a guardian for your children in the event of your death.
- A Living Trust Automatically Appoints Someone to Oversee Your Affairs
- A Living Trust is written so that your trustee can automatically take over if you become ill or incapacitated. On the other hand, if you simply have a Will and no durable power of attorney, the court will have to appoint someone to oversee your financial affairs who will have to report to the court for approval of expenses, sales of property, your care, etc.
- A Living Trust May Just Save You Money
Drafting a Living Trust will likely cost more than drafting a Will as it is a more complex legal document. Moreover, you must also transfer your assets such as bank accounts, stocks, and bond accounts and certificates to the trust through separate paperwork; simply writing up a Living Trust does not actually “fund the trust.” Remember this all really depends on your personal financial situation.
Probate
The legal process wherein the estate of a decedent is administered and the process by which a Will is proved valid or invalid is called Probate. As a general rule, a Will has no legal effect until it is probated in probate court.
When a person dies, his or her estate must go through a process overseen by the probate court. If the decedent leaves a Will directing how his or her property should be distributed after death, the probate court must determine if it should be admitted to probate and given legal effect. Probate proceedings are usually held in the state in which the decedent had domicile or permanent residence at the time of death. Real property owned in another state by the decedent will necessitate the Will being probated in that state as well. To qualify as a Will in probate, an instrument must be of testamentary character and comply with all statutory requirements. By not taking effect until after the death of the person making it and allowing the individual to retain the property under personal control during her or his lifetime, a Will would be deemed to be testamentary. A Will that has been properly executed by a competent person, namely, the testator as required by law, is entitled to be probated, even if some of its provisions cannot be implemented, are invalid or obscure.
All separate papers, instruments, or sheets comprising the most recent of a testator's Wills will be admitted to probate. Where a later Will does not explicitly revoke all prior Wills, two separate and distinct Wills can be probated. Probate courts seek to carry out the declared intention of a testator regarding the disposition of property, and they resort to distributing property according to the law of descent and distribution only where no reasonable alternatives exist.
If the decedent dies “intestate” or without leaving a Will, then the court will appoint a Personal Representative to distribute the decedent's property according to the laws of Descent and Distribution of the State of Florida. These laws are based upon hereditary succession.
In general, the probate process, which is governed by state law, involves the collection of decedent's assets, liquidation of liabilities, payment of necessary taxes, and distribution of property to the rightful heirs.
