Is a will enough in Florida? For many people, estate planning begins with a simple thought: “I need a will.
A Last Will and Testament is an important estate planning document. A properly prepared will can determine who receives property after your death, nominate the person you want to administer your estate, and provide important instructions concerning your family and assets.
But having a will does not necessarily mean that you have a complete estate plan.
A good estate plan considers not only what happens to your property when you die, but also what happens if you become incapacitated, how your assets are titled, who is named on your beneficiary designations, whether probate will be required, and whether Florida law places special restrictions on particular property.
Put another way: A will is a document. An estate plan is a system.
What Does a Florida Will Actually Do?
A will allows you to direct the disposition of property that is subject to administration through your probate estate. It can identify the people or organizations you want to receive that property and establish trusts or other provisions for beneficiaries when appropriate.
A will can also nominate the person you want to serve as your Personal Representative, the Florida term for the person responsible for administering a probate estate. Florida law gives preference to the person nominated in a valid will, although that person must still qualify to serve.
For parents of minor children, a will can also play an important role in expressing preferences concerning guardianship and establishing how an inheritance should be managed for a child rather than simply leaving property outright.
Florida imposes specific formalities for executing a will. Among other requirements, a traditional Florida will must be in writing and executed with two attesting witnesses, with the signatures made in the manner required by statute. Florida also permits electronic wills when the additional statutory requirements governing their execution are satisfied.
But understanding what a will does is only half of the picture.
1. A Will Does Not Avoid Probate
This is one of the most common misconceptions about estate planning. A will does not avoid probate. After a testator dies, Florida law generally requires the custodian of the original will to deposit it with the appropriate clerk of court within 10 days after receiving information of the death. In many cases, the will is the document that tells the probate court how the decedent’s probate estate should be administered.
Whether probate will ultimately be necessary, and what type of administration may be appropriate, depends upon the assets involved and how they were owned. That distinction matters because some property passes through probate while other property may pass outside of probate altogether.
2. A Will Does Not Plan for Your Incapacity
A will generally speaks at death. But what happens if you are alive and unable to manage your own affairs? That is where other estate planning documents become important.
A Durable Power of Attorney can authorize another person to handle financial and legal matters on your behalf. Under Florida law, a properly drafted durable power of attorney remains effective notwithstanding the principal’s subsequent incapacity, subject to the provisions of Chapter 709. Florida also imposes particular execution requirements on powers of attorney.
A Designation of Health Care Surrogate allows you to designate someone to make health care decisions for you or receive health information on your behalf, depending upon the authority granted in the document. Florida law also permits the designation of an alternate surrogate.
A Living Will allows you to express your wishes concerning life-prolonging procedures under specified circumstances.
None of those issues is solved simply because you signed a will. For many clients, planning for incapacity is every bit as important as planning for death.
3. A Will Does Not Control Every Asset You Own
Another common misunderstanding is that a will determines who receives everything a person owns. Not necessarily.
Many assets pass according to mechanisms outside the will. Depending upon the circumstances, these may include assets such as:
- life insurance with a designated beneficiary;
- retirement accounts with beneficiary designations;
- certain jointly owned property;
- payable-on-death or transfer-on-death accounts; and
- property already held in a properly established trust.
This is why asset titling and beneficiary designations are part of estate planning.
Imagine, for example, that your will says one thing but a beneficiary designation completed many years ago says something else. The existence of the will does not necessarily override the contractual beneficiary designation.
Preparing excellent estate planning documents without coordinating the assets that surround them can therefore produce unintended results.
4. A Will Does Not Eliminate Florida’s Special Homestead Rules
Florida homestead deserves particular attention.
Florida law significantly restricts how homestead property may be devised when the owner is survived by a spouse or minor child. For example, the Florida Probate Code provides that homestead generally may not be devised when the owner is survived by a spouse or minor child, subject to the statutory exception allowing a devise to the spouse when there is no minor child.
If homestead is not devised as permitted by Florida law and the decedent is survived by a spouse and descendants, Florida law provides its own rules governing how that property descends, including a statutory life-estate structure and an election available to the surviving spouse in certain circumstances.
The practical lesson is simple:
Owning a Florida homestead can materially affect estate planning. A provision in a will cannot simply override restrictions imposed by the Florida Constitution and statutes.
5. A Simple Will May Not Provide All the Control a Family Needs
Sometimes the issue isn’t whether property reaches the correct beneficiary. It is how and when the beneficiary receives it.
An outright inheritance may be perfectly appropriate for one beneficiary and inappropriate for another. Additional planning may be useful when, for example:
- beneficiaries are minors or young adults;
- a beneficiary has special circumstances;
- the family is blended;
- there are concerns about a beneficiary’s ability to manage an inheritance;
- significant business interests are involved; or
- the client wants property managed over time rather than distributed immediately.
Trust planning can sometimes provide considerably more flexibility in these situations.
But that raises another question.
If a Will Isn’t Enough in Florida, Do You Need a Trust?
No.
There is no one-size-fits-all estate plan.
For some people, a properly drafted will, appropriate incapacity documents, and carefully coordinated asset ownership and beneficiary designations may accomplish their objectives very well.
For others, a revocable living trust may offer significant advantages, including greater continuity in managing assets during incapacity, probate avoidance for properly funded trust assets, privacy, and greater control over how property is administered and distributed.
More sophisticated trust planning may be appropriate when tax considerations, asset protection, business succession, special-needs planning, or complicated family circumstances are involved.
The question should not be:
“Do I need a will or a trust?”
A better question is:
“What am I trying to accomplish, and which planning tools best accomplish those objectives?”
Think of Your Estate Plan as a System
This is why estate planning should not simply be a document-purchasing exercise. A comprehensive plan may involve coordinating:
- your Last Will and Testament;
- one or more trusts;
- your Durable Power of Attorney;
- health care documents;
- beneficiary designations;
- ownership and titling of assets;
- Florida homestead considerations; and
- your particular family and financial circumstances.
Each component needs to work with the others.
A beautifully drafted will cannot fix an outdated beneficiary designation. A trust cannot avoid probate for an asset that was never properly coordinated with the trust. And neither document answers who should make financial or health care decisions while you are alive unless the appropriate incapacity planning has also been completed.
That is why I return to the same principle: A will is a document. An estate plan is a system.
When Should You Review Your Estate Plan?
Even a well-designed estate plan should not simply be placed in a drawer and forgotten.
Consider reviewing your plan after significant life changes, including marriage or divorce, the birth or adoption of a child, the death or incapacity of someone named in your documents, a substantial change in assets, the purchase or sale of a business, or a move to Florida from another state.
It is also sensible to review older documents periodically even when no dramatic event has occurred. Families change. Assets change. Laws change. And sometimes the people you trusted to serve ten years ago are no longer the people you would choose today.
Have Questions About Your Florida Estate Plan?
Every family’s circumstances are different. The right estate plan depends upon your assets, family relationships, goals, and concerns—not simply upon which documents happen to be popular.
If you have an existing will or estate plan and are unsure whether it still accomplishes what you intend, The Law Offices of Brian Giaquinto can help you review your current planning and determine whether changes are appropriate.