Actually if one of us dies before the other, the plan is to leave each other all assets, with the exception of a few minor things to be gifted to others, no disagreements there. However, where the snafu is concerns: what if we both were in an accident or natural disaster at the same time and both perish ? Neither of us can agree what to leave to whom, in that case. Husband has friends and family he wishes to bequeath things to (including our jointly owned home) and I prefer to leave most assets to a charity or charities (including the worth of half of the home or the home itself.) Also we'd like to structure things to avoid best we can assets that need to be subject to probate. Should we do a joint will ? Separate wills ? Trusts ? How to deed the house ? It's difficult enough when we don't agree what to do in that mutual death scenario, but even moreso when we aren't even sure where to start to help figure it out.
Well, you're not alone in your dilemma. I know it doesn't help to say it, but I'm going to anyway - it's very uncommon for a couple to die simultaneously (or that the order of deaths can't be determined). The easy answer first: a revocable trust will avoid probate when properly drafted and funded. Whether you choose a Will or a Trust, instructions can be written 1) if H dies first; 2) if W dies first; and 3) if the order of death can't be determined. For #3, you first agree on a fair hypothetical split of your assets if you're both deceased, such as 50/50, then say that 50% goes the way that H directs and 50% goes the way that W directs. It's always possible after the death of the first spouse for the survivor to make a new Will or amend the Trust, but if you use a trust, you can state that the trust becomes irrevocable on the death of the first spouse to die. The Florida Statutes also provides for an agreement regarding these types of distribution that both spouses sign while living and that is enforceable after the first death. You can see that if you're at that point, there may be a trust issue underlying it all. No joint wills in Florida. How the house would be deeded or distributed would be worked out with your attorney prior to signing your new documents. I changed your practice area to Estate Planning because this is more than a Wills question. Best of Luck!
Great questions and kudos to you for thinking of addressing these issues beforehand. There are a multitude of ways to draft your documents to ensure both spouses' goals are met. When an estate planning lawyer drafts documents for you, the paperwork is a nominal part of the process. Experienced attorneys, especially in this area of practice, are truly Counselors at Law, who can help guide you both to ensure that your intentions are met. I highly suggest you contact one found on this website or at FloridaBar.org. Good luck with your endeavors!!
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Be careful about beneficiary designations or using joint ownership as these can expose the assets to risks of the survivor. Talk with an estate planning or asset protection lawyer about how to protect assets
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