Wills & Trusts
A Last Will and Testament is a legal document that contains a person’s last wishes addressing the disposition or transfer of a person’s probate assets.
Identifying what is a probate asset and the methods to transfer those types of assets in accordance with a person’s last wishes can get complicated.
The idea is to prepare a plan that adopts the testator’s (a term used for the person signing the Will) objectives while address the unpredictability of the future and life events.
Tools that are used in addition to a Will, are trusts and other legal documents to create an overall estate plan.
There are some documents that may always be changed, while other documents may be limited to change (such as, an irrevocable trust) that are usually used in complex tax or asset protection planning techniques.
A Will me always be revoked, amended, or restated by a testator, unless the unfortunate testator suffers from some type of health matter that leave the testator incapacitated. There are several formalities to executing a Will under Florida law that include:
- Testator must be at least 18 years old
- Testator must be of sound mind when signing his or her will
- Will must be in writing, signed by the Testator or at his or her direction
- Signed in the presence of 2 attesting witnesses, who must also sign in the presence of the Testator and the other witness
It is not required to have a self-proving affidavit included with a Will, but it is good practice and simplifies the legal process when probating the Will. The purpose of the self-proving affidavit is that the 2 attesting witness swear under oath that they watched the Testator sign the Will and that the Testator appeared to be of sound mind during the signing of the Will.
Other Issues & Documents Usually Prepared with a Will:
- Addressing the care for minor children
- Declaration Naming Preneed Guardian for Minor
- Designation of Health Care Surrogate for Minor
- Providing instruction and details in the event of a person’s incapacity
- Designation of Health Care Surrogate
- Declaration Naming Preneed Guardian
- Durable Power of Attorney
- State whether a person wants his or her life to be artificially prolonged or whether he prefers to be allowed to die naturally
- Living Will
- Addressing the transfer and management of assets during the settlor/grantor’s lifetime, and addressing the transfer of those assets upon the settlor/grantor’s death
- Revocable Trust also known as a Living Trust or Revocable Living Trust
While it is not common knowledge that a Will only control the disposition of some types of assets, a Will does serve an important part of an individual’s estate plan.
Yet the key focus should be on the estate plan and utilizing legal documents like Wills and Trusts to execute an individual’s wishes whether it be based on death or incapacity.