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-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. 

A living, or intervivos, trust may be revocable or irrevocable, and it may be funded or unfunded. A funded living trust is an alternative to a will and to probate. In a funded living trust, a person (the settlor) puts property and money into his/her trust during his/her lifetime for the benefit of him/her and possibly other family members. An unfunded living trust typically receives assets through a simple pour-over will following the settlors death.Most people who are able to handle their own financial affairs usually name themselves as trustee of revocable trusts they set up. The trustee invests the trust assets and makes the assets and income available to the settlor/beneficiary during his or her life. Such a trust is almost always revocable, meaning that the settlor can revoke or amend the trust so long as he or she is able.If the settlor/beneficiary becomes disabled, alternate trustees are usually named in the trust to assume trustee responsibilities, the most important of which is providing for the financial needs of the disabled settlor/beneficiary. A settlor will usually name a spouse, adult child, relative, friend or a bank as alternate trustees. When the settlor/beneficiary dies, the trust often terminates, and the successor trustee will distribute the trust property to the beneficiaries, as under a will. In many situations, however, living trusts will continue for the benefit of the settlors spouse and children.A living trust has several advantages if it is set up properly and fully-funded, meaning all the settlors assets are placed in trust. First, a fully-funded trust can reduce or eliminate the need for probate upon the death of the settlor. Second, a Colorado resident who owns real property in another state can put that real estate into a living trust and thereby reduce or eliminate the need for probate in the other state. Third, a living trust may avoid the need for a conservatorship for the settlor if he or she becomes legally disabled. However, a living trust cannot avoid a guardianship, because the trustee of a living trust cannot make medical or care decisions for the settlor unless the trustee is the named agent for the settlor under a separate Medical Power of Attorney. (See Chapter 6 for more information on guardianships and Health Care Powers of Attorney.)Many people think they need a fully-funded living trust so that probate is not necessary when they die. In some states, the probate process is cumbersome and costly, and it is thus desirable to avoid that process. In Colorado, however, probate is relatively simple and avoiding probate is not, by itself, a good reason to have a fully-funded, living trust.Trusts are complex legal documents that require the use of competent and experienced estate planning attorneys. Preparing and managing the trust can be more expensive in Colorado than a will and probate. If the trust is not drafted correctly, significant harmful tax results may occur. You should not try to create your own trust or purchase a preprinted living trust. Initially, living trusts and wills with testamentary trusts are more expensive to prepare than wills without trusts. However, they may save you many thousands of dollars if you have a complex estate. Bob Frie and Paul Danborn in our office would be more than happy to discuss with you if you would benefit from a Living Trust.  Please call our office to discuss this with them.