Wills - Separating Fact from Fiction
What is a Will? A will is a legal document with which an individual can put to paper their wishes for when they die. That explanation, although seemingly simple, holds a lot of information! This guide will go through some of the powers and pitfalls of this ubiquitous document.
A Will is a 'Legal Document'Firstly, a will is a legal document, which means there are some requirements when it comes to how it is written and executed before it is given legal effect. For example, in Florida, a will must be signed by the testator (the individual who is making the will) in the presence of two witnesses. The witnesses must be competent but they are not -required- to be 'disinterested.' However, rarely if ever will you find a will witnessed by individuals who would be beneficiaries under it, unless drafted by an attorney who does not fear risk. There are many additional requirements before a will is given legal effect in Florida, so it's important that the will is drafted properly.
What are your Wishes?Going back to the definition, let's discuss the 'wishes' portion. A will acts as a set of instructions to be followed by the probate court in dividing and distributing assets, appointing fiduciaries, and even nominating guardians. But it is only what the individual desires--there are no guarantees that the court will, after carefully considering all facts, actually enforce these wishes. In the majority of cases, a decedent's wishes will be followed assuming the will was properly executed and is properly before the court. However, there are many things that you cannot do as a testator, so even if those wishes are memorialized, the court may not follow them. For example, there are many complex rules for what you can do with your homestead--real property owned in Florida where you primarily reside. You cannot disinherit a spouse without a valid waiver, pre-, or post-nuptial agreement. Spouses also have rights (without those prior-mentioned documents in place) to an elective share of your estate, which may result in a different distribution scheme than you planned on. These rules are carefully navigated by attorneys who draft wills, in order to ensure that the individuals wishes are in fact granted.
Death DictatesOne last detail in that definition that bears recognition; that the purpose comes to a head when the individual dies. I often hear from individuals seeking legal advice that they are this or that in their parent's will, and they think that gives them the authority to accomplish XYZ. A will is not worth the paper it is written on until the testator actually dies. One of the reasons for this is that a will is revocable by the testator--meaning they can change it or tear it up to make it null and void up to their actual death. Furthermore, the will grants no authority or power, nor does it convey any property, until a probate court says that it does.
That's Probatable"But if I have a will why would my estate go through probate?" Many of my clients have asked me some form of this question, and it perfectly shows how misunderstood the Florida probate process really is. As mentioned earlier; a will acts as a set of instructions for the probate court to follow. Probate really is akin to buying a fancy chair from Ikea: the Judge is the builder, the chair represents the wishes of the decedent, and the will are the (sometimes awful to follow) instructions. Just like that Ikea chair, more often than not the Judge will follow the instructions and will end up with the exact chair that the decedent envisioned. Sometimes though, if the instructions are unclear or impossible, the chair may end up missing a leg, and the resulting estate fails to accomplish what the testator wanted to accomplish. Other times, the Judge will decide not to follow some or even all of the instructions for a variety of reasons, resulting in something completely unexpected by the testator, like a bench, or a stool. For these reasons, it is critically important that your will be drafted clearly, avoid the pitfalls common to many wills, should not contain any provisions that are impossible to execute, and it must be prepared to the basic standards required to give it legal effect. Also, when a good will is in place, it's important for many individuals to supplement that with an estate planning strategy which avoids probate entirely, and accomplishes the goals and wishes of the testator without the need for court intervention. Sure, you can go to Staples or Walmart to get a 'Will Template,' but without proper advice from an estate planning lawyer, that could result in something totally unexpected when you do pass away.