Ethical Wills: What They Are and Why You Need One

Author

The Dorcey Law Firm

For more information about the author, click to view their website: The Dorcey Law Firm

Posted on

Sep 11, 2023

Book/Edition

Florida - Southwest

Share This

Wills may seem straightforward, but it is crucial that you ensure their legality. Additionally, wills may be subject to litigation if there are reasons to doubt a will’s legitimacy. There are other concerns as well including matters of ethics. So, what is an ethical will and why do you need to include one in your estate plan?

Will Basics

A will is a legal document used to coordinate the distribution of assets and the future of an estate after death. Individuals can designate beneficiaries, choose a Power of Attorney, and decide how the estate will be divided.

A basic will includes:

  • Beneficiaries who will inherit certain assets
  • Designation of an executor who will handle the directions in the will
  • Guardians for minor children
  • Instructions for the division of assets

Wills are crucial because not only do they include provisions for beneficiaries and minors, but they also ensure that the estate is insulated from the worst of probate.

Without a will, an estate could be fragmented during the probate process and beneficiaries may not receive a portion of assets that the deceased intended.

Legal Will vs. Ethical Will

A legal will is the most traditional will and the version that most people picture when thinking about a will. An ethical will however, is designed to pass on intangible assets.

The period after a loved one passes is emotionally charged and many people feel connected to certain items. Ethical wills can resolve situations where a family member may want a specific item.

Intangible assets are things that are either not physical or do not have a quantifiable value. These assets may include things like guiding principles, memories, and spiritual values. In terms of an ethical will, items with significant sentimental value.

These objects may include:

  • Recipes
  • Photographs
  • Clothing items
  • And other sentimental items

These objects and documents can be designated to specific beneficiaries to prevent confusion or bad feelings between family members.

Writing an Ethical Will

When constructing an ethical will, timing is everything. It is important to recognize that items increase in sentiment over time while others may lose value in the same way that physical assets do. It is usually best to write your ethical will after having children or at a time in your life when you feel like there are meaningful contributions to leave behind.

Ethical wills do not have a specific structure. Most wills of this type are written like a formal letter, note, or diary entry. These documents can be personalized as much as you want and may be in any format including a scrapbook, collage, video, presentation, or audio recording. In many ways, the process of drafting an ethical will is just as cathartic and therapeutic for the writer as it is for the beneficiaries.

Ethical wills may be included in an estate plan but are not legal documents. If you do not have an estate plan, consider contacting our experienced attorneys at Dorcey Law Firm.


Other Articles You May Like

What is a Last Will and Testament?

A Last Will & Testament, commonly referred to as a Will, is a legal document that expresses a person's wishes regarding the distribution of their assets and the management of their affairs after their death. It serves as a written record of how an individual wants their property and belongings to be handled, including who should inherit their assets, who should be appointed as guardians for minor children, and any other specific instructions they may have regarding their final wishes when they are gone.  Many people confuse a Will with a Living Will which is a much different document that takes effect while you are alive!  Here in Florida, it generally covers three conditions and states that if you have: a terminal condition; end stage condition; or if you are in a persistent vegetative state, where in the opinion of two doctors, there is not reasonable medical hope of recovery, that you do not want to be kept alive by machines.  Again, a very different purpose than your Last Will & Testament. The main purposes of a Last Will & Testament are:Asset Distribution: A Will allows individuals to specify how their property, such as real estate, investments, bank accounts, personal belongings, and other assets, should be distributed among their beneficiaries or heirs. Without a Will, the distribution of assets typically follows the laws of intestacy, which may not align with the deceased person's preferences.Guardianship designation: If the deceased person has minor children, a Will can designate a guardian who will be responsible for their care and upbringing. This allows parents to have a say in who will be responsible for their children's well-being if they pass away and not leave it solely up to a judge with no input from them.Personal Representative Appointment: A Will typically appoints what is referred to in Florida as a personal Representative.  Other states call the persona and Executor.  This person is responsible for ensuring that the deceased person's wishes, as outlined in the Will, are carried out. The Personal Representative manages the administrative tasks, such as paying outstanding debts, filing tax returns, and distributing assets according to the instructions provided in the Will.Avoiding potential conflicts: This is a big issue, especially in situations where there is a second or third marriage involved and there are children from a prior relationship.  A well-drafted Will can help minimize conflicts among family members or other potential beneficiaries, as it provides clear instructions on asset distribution and removes ambiguity. To be legally valid in Florida, a Will requires certain formalities, such as being in writing, signed by the testator (the person making the Will) and witnessed by two witnesses.  Also it is best to have the testators signature and the witnesses signatures acknowledged by a Notary Public.  This makes the Will a self-proving Will which avoids the necessity of having to find the witnesses when the testator passes.Will ContestsContesting a Last Will & Testament means challenging its validity or certain provisions within it. There are a number of grounds on which a Will can be contested in Florida. Some of the typical reasons for contesting a Will include: Lack of testamentary capacity: This refers to the testator's mental ability to understand the nature and significance of creating a Will. If it can be demonstrated that the testator lacked the necessary mental capacity at the time of creating the Will, it may be deemed invalid. Factors that can affect testamentary capacity include mental illness, senility, or undue influence.Undue influence: If it can be proven that the testator was coerced, manipulated, or unduly influenced by another person when creating the Will, it may be contested. Undue influence typically involves someone exerting pressure on the testator to make decisions against their own wishes or best interests.  It is often a caregiver who cuts off outsiders from contact with the testator.  It can be a child, a spouse, a home health aid of trusted advisor.Fraud or forgery: If there is evidence to suggest that the Will was forged or that fraud was involved in its creation, it can be contested. This may include situations where someone impersonates the testator, forges their signature, or makes fraudulent changes to the Will.Improper execution: Wills must generally meet certain formalities to be considered valid. If the Will was not properly executed according to the legal requirements of the jurisdiction, such as lack of witnesses or failure to sign the document correctly, it can be contested.  This often occurs when someone tries to use a do it yourself Will kit.  While DIY may be good for home improvement projects, it is best to consult professionals when planning to disburse your hard-earned assets.Mistake or ambiguity: Another problem with DIY Will kits are mistakes or ambiguities in the Will that make it unclear or open to interpretation.  In such cases it may be contested. This can occur when the language used in the Will is vague, contradictory, or inconsistent, leading to disputes among beneficiaries.Revocation or subsequent Will: If a more recent Will is discovered that explicitly revokes or replaces the previous Will, the newer version may be contested based upon all of the grounds discussed above.It's important to note that contesting a Will can be a complex legal process, and the specific grounds for a challenge must be explored thoroughly as a Will contest is expensive and time-consuming as well as very difficult to win.  That is why your best course of action to avoid this for your family is to work with a team of professionals, including your lawyer, investment advisor and accountant, to develop an estate plan that best fits your intentions, and prepares you and your family for when life happens.

Estate Plan Check-Ups

Estate Plan Check-UpsEffective estate planning is personal, and its more than just deciding who to leave your assets to once you die.  Effective estate planning  is a comprehensive process that encompasses pre-need planning: health care decisions, financial management, and maintaining a delicate balance between independence and security.  Like your preventive doctor visits, you should regularly check in on your estate plan to ensure it fits your current needs, considers and plans for potential future care needs, and will give effect to your wishes now and in the future. Generally, estate planning involves creating a last will and testament, possibly a revocable trust, possibly an asset protection trust or a supplemental needs trust for a loved one who is unable to manage finances or may be vulnerable to abuse or exploitation.  Estate planning also involves important advanced directives, such as a durable financial power of attorney, a health care power of attorney, and a living will.   Creating an estate plan, or getting my affairs in order, tends to be an item on our to-do lists, for us to get done and move on to the next thing. However, while it may not be something you have to look at every month, or even every year, once your initial estate plan is completed, it is something that needs to be reviewed with some regularity.Most people get an annual physical when they are healthy, not when they are sick. They do this because they want to proactively spot any issues that could cause them to become ill in the future. The same concept can and should be applied when it comes to reviewing and updating your estate plan. Your estate plan may be healthy now, but you want to make sure that it stays that way by checking it regularly, to ensure it fits your needs and family circumstances, protects and provides for you now, and  accomplishes your goals and wishes in the future. Editors Note: This article is for informational purposes only and is not intended to be legal advice.  This article was submitted by Ashley Day, Esq.  Ashley Day Law, LLC.  Reach her at 251-277-3377. 

Paperwork...Paperwork...What Should I Keep?

PaperworkPaperworkWhat Should I keep? Sorting through the paperwork of a deceased loved one is a daunting task. It is important to know what to keep and what to discard. Here are some helpful tips.  Deeds, Titles and Vehicle RegistrationsDeeds and titles to property may not be obvious on the face of the document so it is important to read everything carefully. Keep anything that has a legal description (Lots and Blocks or Metes and Bounds), a vehicle identification number (VIN), contains the word title, deed of trust or warranty deed.  ReceiptsSome property does not have a title such as a tractor, farm equipment or certain recreational equipment. In such cases, keep the purchase receipts for this type of property. It will be useful if there is a question about ownership, the value of the property or the date it was purchased.  Bank RecordsSave all bank records and statements. These will be valuable if a dispute arises about ownership of an account, payments or distributions made from the account and to whom. Shred unused checks.  Retirement AccountsSave all statements and records pertaining to the decedents individual retirement accounts (IRAs), 401(k) plans or pension plans.  Life Insurance PoliciesSave all life insurance policies.  Social Security Paperwork and Earning StatementsSave information about the decedents Social Security account or earning statements.  Cancel the Decedents Credit Card Accounts Nowadays, identity theft is a huge issue. Contact Experian, Equifax and TransUnion to report the death of your loved one. Request the credit report be flagged as Deceased. Being proactive prevents a lot of hassle later on.  Cancel all credit cards in the deceased persons name. Also, there may be questions about the credit card purchase of certain items or property. Save credit card statements until probate of the decedents estate is complete.  Documents that contain the decedents Social Security NumberIf you find any documents with the decedents Social Security Number and you make a determination that the documents are not going to be saved, make sure it all gets shredded.  Tax RecordsKeep the decedents tax records. There may be a question about real property valuation, exemption or other issues that can be resolved by information in a tax return.   Loan PaperworkKeep all loan paperwork including loans on property or a loan the decedent made to a relative, friend, individual or organization. This may show that there is outstanding debt or money owed to the decedents estate.  Business AgreementsSometimes people have business agreements that have been documented in writing. Such agreements may contain a succession plan, what should happen with business equipment or property, or what should happen upon the death of a business partner.  Military RecordsSave all military records just in case there are benefits owed to a survivor such as a spouse, dependent child or disabled child. Some benefits are dependent upon verification of military service during war time which occurred prior to the advent of computer records. This includes photographs taken during wartime.  Birth and Marriage CertificatesSave all birth and marriage certificates. Again, for certain benefits for survivors, such certificates may be needed.  Timeframe for Keeping PaperworkIt is advisable to keep these potentially important documents until the estate of the decedent is settled, at a minimum. Otherwise keep them at least seven years and longer if possible, especially if real estate is involved.  Contact Your AttorneyYour attorney will ask you pertinent questions and give you advice about what records to keep.  You should also review your own estate plan documents to make sure they are up to date and reflect your current wishes.  This article was written by Donna A. Schuyler, Attorney, who practices in the areas of estate planning, elder law, guardianship, and probate. Donna Schuyler Law, PLLC; elderlawboise.com. Phone 208-344-1947

Local Services By This Author

Dorcey Law Firm

Elder Law 10181 6 Mile Cypress Parkway Suite C, Fort Myers, Florida, 33966

At Dorcey Law Firm, our experienced legal team have proudly represented numerous clients, focusing on areas like Estate Planning, Business Planning, Asset protection, Elder Law, and Probate. Over the years, our attorneys have efficiently managed and escrowed countless trust accounts. This includes meticulous work in our Probate & Trust Administration as well as our Estate Planning and Elder Law departments.  We understand that each client's needs are unique. Hence, our team is dedicated to tailoring services that not only meet your needs but also ensure that your estate plans are designed, executed, funded, and kept updated. Our in-house Trust Funding Department ensures that every estate plan crafted by our lawyers is fully funded. This commitment ensures our clients wishes are honored without unnecessary delays, excessive costs, or asset depletion.  By partnering with us, you're not just securing your assets; you're laying a foundation that benefits your family for generations. Additionally, our exclusive Auto-Pilot Planning Program (APP) is designed to keep your estate plan up-to-date with ever-evolving laws and life changes, ensuring seamless adjustments when needed.  Whether you've recently settled in Florida or have been a resident for years, or if you're exploring ways to protect your assets now or in the future, Dorcey Law Firm in Fort Myers is committed to helping you craft the perfect estate plan to care for your loved ones.