About Wills…… What is it? A will is a document in which you declare who gets your property upon your death. In the will, you name someone who you want to carry out the wishes expressed in your will, and you name someone who you want to be the guardian of any minor children that you may have at the time of your death. Who needs one? All persons who want to control what they own at the time of their death should have a will. This is especially important for people with children, because their wills will also designate guardians for their children. What if I die without one? The legal term for dying without a will is intestacy. If you die intestate, the law of the state of your legal residence will determine who gets your property. If you die without a will, not only will you have no control over who receives your property, you will also have no control over who handles the affairs of your estate or who is named as guardians of your children. Is all of my property covered by the will? Some property does not pass under a will, but is handled in other ways. Military death gratuities and any military pay and allowances earned but not paid before death will go to the persons named on your DD Form 93, Record of Emergency Data. Life insurance proceeds are not controlled by your will, because life insurance proceeds will go directly to the person you named as beneficiary in your life insurance policy. In addition, if you own property “jointly with a right of survivorship” with another person, that property will go directly to the other person if you die first, and vice-versa. Some common examples of owning property “jointly with a right of survivorship” are real estate (homes), bank accounts, CD’s, and savings bonds. Where should I keep it? Keep your will in a place that is safe but accessible. If you use a bank safe deposit box for this purpose, find out about the bank’s procedures for opening the box upon your death to retrieve the will. Often is it the bank’s policy to seal safe deposit boxes when people die. Lastly, be certain that someone in your family knows where the will is kept so that a lot of time is not spent looking for the will later. Often it is best to keep your will with a nonfamily member personal representative. When should I change my will? You should change your will whenever the important circumstances in your life change. Some examples are becoming a resident of a new state, getting married, losing a spouse by death or divorce, and the birth or death of any child. Of course, if your will becomes lost, mutilated, or marked on, you should get a new one as soon as possible. How do I change my will? You can change it by preparing a new one or by adding an amendment (codicil) to the original one. With both methods, you must comply with some strict legal formalities, so you should get help from a lawyer. CAUTION: Do not ever try to change your will be lining out parts of it or by writing in changes. This could make the entire will become invalid.
Probate Facts What is probate? Probate is a court procedure used to determine whether a will is valid or invalid. If it is valid, the court ensures that the property is given to those persons named in the will to receive it. The length and cost of probate vary greatly, depending in the amount of property involved and the complexity of the estate. Probate in Florida: The Florida Probate Code is found in Chapters 731 through 735 of the Florida Statutes. If the decedent was a Florida resident, the will must be admitted to probate in an original proceeding in Florida in order to transfer title to her property. The probate procedure will take place in the county in which the decedent was domiciled. What does my personal representative (executor) do? A personal representative is under a legal duty, known as a fiduciary duty, to settle and distribute your estate in accordance with the terms of your will and the probate code of the state of administration. The personal representative is also under a duty to act in the best interests of the beneficiaries and the creditors of the estate. The personal representative has the legal right to take possession and control of the decedent’s real and personal property (except homestead) and hold all rents, income, issues and profits as assets for the payment of devises, debts, family allowances, claims, charges and expenses of administration and for distribution. Because the personal representative acts as a fiduciary, he or she is obligated to administrate the estate according to the law. If the exercise of power concerning the estate is improper or in bad faith, the personal representative is liable to interested persons for damage or loss resulting from a breach of a fiduciary duty. How does probate work? Whether the estate is being distributed by a will or through intestacy, (dying without a will), a petition for administration must be filed with the court by an interested person. If there is a will, it must be presented to the court at that time, so the personal representative can be contacted. A copy of an official record of the decedent’s death must be filed within three months after the date of the first publication of the notice of administration. Why is probate necessary? Until a will is admitted into probate in the state of the decedent’s domicile, a will is ineffective to prove title to, or the possession of, property of the decedent. What if my estate is small? Florida law provides two methods for administration of small estates. The first is family administration, which is available when the estate is under $60,000, and if the beneficiaries consist primarily of a surviving spouse, lineal descendants or lineal ascendants, and specific devises to others make up only a minor part of the decedent’s will. Summary administration is available for estates valued at less than $25,000. All types of administration are governed by Florida statutes.