Frequently Asked Questions
Q. What happens if I die without a will?
A. When a person dies without a will, he or she is referred to as dying “intestate.” Unfortunately, this is a very common situation. Each state has a statutory distribution plan for the estates of people who die without a will. The distribution patterns set by statute do not take into account the heirs’ needs or the degree of emotional closeness that the deceased person had with any heir. In Florida, the intestate distribution plan is set forth in Florida Statutes 732.101 – 732.1101 (http://www.leg.state.fl.us/statutes/).
Q. If a person has no significant assets, why would they need a will?
A. If your death is the result of someone else’s negligence or wrongful act, your estate might have the right to bring a lawsuit against the person or business at fault. Such a lawsuit might yield a large monetary award. Consequently, your estate might have far more value than you think if your death results from another person’s wrongful act, negligence or a defectively designed product.
If you are the parent of a minor child, you may designate a guardian for your child in your will. The court that oversees the probate of your estate is not bound by this designation but usually will give your choice of guardian great weight.
Finally, even people with tiny estates usually have items of sentimental value that they wish to go to specific family members or friends. With a last will & testament, your wishes as to how family heirlooms and items of sentimental value are to be distributed leave little room for people to claim that you intended otherwise.
Q. If I leave someone a specific item in my will such as my antique pocket-watch, and if I no longer own the watch at my death, does this spoil the will or create problems?
A. Not a problem. The will is still valid. The particular bequest of any property no longer owned by you at your death will be ignored.
Q. After my will is written and signed, may I make changes to it by crossing out what I don’t want and writing in what I do want?
A. No. If the will has not been revoked by you, the cross-outs as well as the new provisions will be ignored. In that situation, if you need to make any changes, you should write a new will or create a codicil.
Q. I have a will from another state that was prepared by an attorney in that state, is it valid?
A. Assuming that the attorney was competent in drafting wills, the will is valid even though you have moved to a new state.
Q. My spouse and I have been separated for a long time, but we never got around to divorcing. May I omit my spouse from my will or state that my spouse is to get $1.00?
A. Assuming that there is no pre-existing written agreement like a prenuptial contract, your separated spouse has statutory rights to a significant portion of your estate regardless of what your will says. On the other hand, the separated spouse may voluntarily refuse to accept the inheritance. Such a refusal is known as “disclaiming” the right to participate in the proceeds of the estate. Human nature being what it is, people rarely disclaim their right to a share of someone’s estate. Separated spouse situations have the potential to give rise to problematic estate settlements. Feel free to ask this law firm how this situation may be dealt with before the person writing the will dies.
Q. My children do not handle money well. How can I leave my children money without worrying about them squandering their inheritance?
A. This is an excellent situation for the creation of a spendthrift trust. Instead of giving the money outright to your children, your will can create a trust for the benefit of your children with the money in the trust controlled by someone else—your trustee. If you have a person who you feel is financially responsible and trustworthy, ask that person if he or she would accept being designated as your trustee. A trustee is under a duty to follow your instructions as to how the trust is to be managed for the benefit of the beneficiaries.
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