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What a Last Will and Testament Can – and Can’t – Do for You

Whether you are the meticulous, highly organized type who always has a careful plan, or like most of us, tend to leave some things until the last minute, there’s one inescapable certainty about life: it will someday end.

You certainly have heard a will can help ensure the property you leave behind will be disposed the way you want it to be, to help provide for your surviving beneficiaries. With an estimated $30 trillion in baby-boomer assets to be transferred over the next 30 to 40 years, it’s a pretty big issue overall, and a very personal one for the affected individuals.

It is true a will can do you some good (just going through the process of reviewing your assets and thinking about what you want to do with them is valuable), but it’s important not to overestimate how much benefit a will can provide, or to overlook other steps you may want to take instead or in addition to. Here’s a brief summary of reasons writing a will may not be the only, or even the best, way to accomplish your particular goals.

A will can make specific bequests of particular items, and name beneficiaries – for example, schools or charities – which you may want to aid. If you die intestate, i.e. without a will, state law will control what happens to your property. So having a will helps insure that your assets go where you want and not where the state laws would otherwise provide.

Under Florida law, where no valid will exists at the time of death, a surviving spouse inherits everything if there are no direct descendants, such as children, grandchildren or great-grandchildren. That’s also true if the decedent and his or her spouse had children together, and neither spouse had any other children.

If the deceased spouse had any children with a different spouse, however, Florida intestacy law gives half of the estate to the surviving spouse and divides the other half among the other descendants.  From there it just gets more complicated.

Many people, having heard stories about the delays and costs of going through the probate process (court-supervised accounting and administration of an estate), have the mistaken impression that having a will means an estate won’t have to be probated. In fact, nearly every estate for which there is a valid will nevertheless will go through probate. Except for very small estates (with no real estate interests and personal property of no more than $75,000) that will probably involve hiring a probate lawyer, getting court approval of a personal representative for the estate, and require significant amounts of time and money.

Besides transferring property, wills serve other purposes; one of the most common is naming guardians for young children. But there are other, often better ways to deal with heirs who need continuing care due to special health or personal care needs. Creating a special purpose trust to cover the future costs of such care requires advanced planning, modest legal costs and setting aside specific property to that purpose, but can have substantial benefits.

First, assets used to fund trusts pass outside of probate. Especially where a decedent owned property in more than one state, that significantly cuts the time and cost of wrapping up an estate. In addition, a properly done trust can also shelter assets that might otherwise preclude the heir with special needs from being eligible for benefits under programs like Medicaid. Trusts also expose less information of the estate to public scrutiny.

If you would like to explore the ways to provide for your family after your death that are best suited to your situation, please call on us at the King Law Firm. We can show you options available to you to help make sure your final wishes are carried out as effectively as possible.

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