When you think of estate planning, a will may be the first thing that comes to mind. However, a will is only one small part of a comprehensive estate plan. Here’s what your Pembroke Pines estate planning attorney at Kramer Green wants you to know about wills and their limitations.
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Your Will Does Not Avoid Probate.
Some people think that if you have a will in place, your estate will not have to go through probate. However, a will does not avoid probate. When a person passes away with a will, probate is the process by which a court supervises the distribution of their assets to the beneficiaries of the will. Creditors can also file claims for payment against the estate.
Probate can be time-consuming and costly. It also exposes your family’s financial matters to the public. Therefore, if you want to benefit your heirs by keeping your estate out of probate, you should explore other estate planning tools that will allow you to do so.
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Your Will Provides No Protection Until After Your Death.
Your will only goes into effect after your death. As a result, it offers you no legal protection while you are living. If you become incapacitated and need someone else to make financial and health care decisions for you, your will is irrelevant. You can only have this protection if you have other estate planning mechanisms in place, such as a health care surrogate and a durable power of attorney. These documents allow you to determine who should make these decisions on your behalf if you are no longer able to make your own decisions.
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Your Will Does Not Affect Beneficiary Designations.
Some types of property have beneficiary designations, such as life insurance policies, retirement accounts, and even bank accounts. The beneficiary whom you name on those accounts is the person who will receive the proceeds of those accounts after your death. Your will does not affect or change beneficiary designations. Since they have beneficiary designations, those types of property are not part of your estate. Your will only governs property that is part of your estate.
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Your Will Does Not Affect Joint Ownership of Property.
If you own a joint bank account with another person, ownership of the bank account automatically transfers to the other person listed as a joint owner upon your death. Likewise, if you hold title to real estate with one or more other persons as “joint tenants with rights of survivorship,” title to the real estate automatically passes to the other joint tenant(s). Like accounts with beneficiaries, joint ownership removes property from your estate and allows it to transfer to the joint owners right away, without the need to go through probate.
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You Cannot Avoid Your Creditors in Your Will.
You cannot use your will to avoid the payment of debts that you owe at the time of your death. If you attempt to do so, the probate court will find that provision of your will legally invalid. Any valid debts of your estate will be paid out of the property in your estate, so long as sufficient property exists to pay those debts.
Frequently Asked Questions (FAQ)
Can I make provisions for my pet in my will?
Although you may consider your pet a family member, Florida law still regards pets as property. Therefore, you cannot name your pet as a beneficiary of your will. You can always make informal arrangements for others to care for your pets after you pass away. However, you can also take advantage of other, more formal options to ensure your pet receives proper care.
Can I appoint a legal guardian for my children in my will?
While you can designate the person(s) whom you would prefer to be the legal guardian of your children in your will, that designation is not automatic. The designated person(s) must still file a guardianship petition in court and obtain a court order designating them as guardian(s) to make the guardianship legal. A court must always ensure that a guardianship is in the children’s best interests before granting it.
Can I choose anyone to serve as the executor or personal representative of my estate?
In your will, you must name an executor or personal representative who will carry out the terms of your will and administer your estate under the governance of the probate court. State law sets requirements for who can serve as an estate executor. For instance, Florida law requires that the executor of a Florida estate either be a resident of Florida or a close relative by blood or marriage, if not a Florida resident. Likewise, an executor must be at least 18 years of age, so an attempt to make your minor child the executor of your estate would be invalid under Florida law.
Protect Your Legacy with Trusted Legal Counsel
At Kramer, Green, Zuckerman, Greene & Buchsbaum, P.A., our Aventura estate planning attorneys are committed to helping you make confident, informed decisions about your estate plan. We focus on strategies that maximize retirement income, safeguard assets for your heirs, and provide lasting peace of mind for you and your loved ones.
From asset protection to retirement and estate planning, our team offers clear guidance at every stage. Contact us at (954) 966-2112 or connect with us online to schedule a consultation today.