Estate planning encompasses many aspects for ensuring that your assets are distributed upon your death to your loved ones. It may include such things as a Last Will and Testament, a Testamentary Trust, a Revocable Trust, an Irrevocable Trust, Enhanced Life Estate Deeds, or such other vehicles for holding your assets in such a manner that they transfer according to your wishes. After consulting with you regarding your assets and how you wish to have them distributed, we can assist you in putting a plan in place to ensure your wishes are carried out.
A Last Will and Testament is an important legal document that is the first building block to any good estate plan. After determining that you need an estate plan, we may recommend either a will-based estate plan or a trust-based estate plan. Your Last Will and Testament will take on significantly different roles depending upon the type of plan that we recommend.
Will-Based Estate Plan
With a Will based estate plan, your Last Will and Testament will provide all of the essential details of who will inherit your property, when and how they will inherit it, and who will be put in charge of settling your final affairs. With a will-based estate plan, your Last Will and Testament will cover the following:
- Who will serve as the Personal Representative, meaning the person who will be in charge of settling your final affairs and insuring that your beneficiaries will receive their inheritance;
- What powers your Personal Representative will have;
- Who will inherit your property; and
- How and when your property will ultimately be transferred to your beneficiaries.
Note that if you have minor children, your Last Will and Testament will also cover another important item: Who will serve as the Guardian for your minor children until they become adults.
With a trust based estate plan, your Revocable Living Trust will cover the four important points listed above, but the person in charge of settling your final affairs after you die will be called your Trustee or Successor Trustee instead of your Personal Representative.
With a Revocable Living Trust, you will still need to have a Last Will and Testament. This is because you will need to fund your assets into your trust before you die so that your trust agreement can govern what will happen to the property titled in the name of the trust after you die. If you fail to fund even one asset into your trust, then your Last Will and Testament will be necessary to transfer any property which was overlooked into your trust after you die. In this case the Last Will and Testament will simply function as a “Pourover Will,” meaning that it will provide for the unfunded asset(s) to pour over into your trust after your death through the probate process.
A Pourover Will only needs to cover two important points:
- Who will be in charge of your assets that were not funded into your trust as the Personal Representative; and
- What powers your Personal Representative will have.
Note that if you have minor children, then your Pourover Will should also cover who will serve as the Guardian for your minor children until they become adults.
What Happens Without a Last Will and Testament?
What happens if you fail to make a Last Will and Testament before you die? Then the state that you live in at the time of your death, as well as any other state where you own real estate at the time of your death, will provide for the distribution of your property under the state’s intestacy laws. These laws vary greatly from state to state and can cause different people to inherit your property if you own real estate in more than one state.
The only way to insure that your property will go the beneficiaries that you choose, as opposed to the beneficiaries that your state of residence or the state where you own real estate chooses for you, is to make a valid Last Will and Testament.
Link to The Florida Bar Pamphlet on Wills
Link to the Florida Bar Pamphlet on Revocable Trusts: