A good estate plan is made up of several documents, and the will is just one of them. However, it plays a particularly important role in many people’s plans. Everyone who is starting the estate planning process should understand its strengths and limitations.
The will controls the disposition of your property after death. It ensures that your wishes are honored, and can smooth the process of settling your estate.
A will can also allow for a seamless transition of guardianship, as you can use your will to name a guardian for your children.
Dying intestate
If one dies intestate –that is, without a will –then Florida’s inheritance statute governs, and your property will be distributed according to a fixed formula as stipulated by law. Further, the court will oversee the estate’s administration, driving up costs and diminishing the value of the estate.
Limits to the power of the will
Some interests in property cannot be willed because the owner’s rights terminate at death. For instance:
- A life estate – this is property that’s only owned for the life of the owner
- A homestead when the decedent is survived by next of kin
- Any property owned jointly with persons who have rights of survivorship
Further, a will cannot disinherit a spouse. Only a lawfully executed marital agreement can do that. Upon the decedent’s death, the surviving spouse can choose to take either the share of property provided by the will or the share determined by Florida’s “elective share” statute.
The will can be modified any number of times, but those changes must be executed with all the formalities that are upheld when creating the will itself, or the will may be nullified.
Given the intricacies of the law, and the complexity of estate planning, it is important to seek out help from a skilled attorney.
