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Do You Have Will Power?

Understand What A Will Is As Well As What You Can and Cannot Accomplish By Creating and Executing A Will

Robert J. Kulas PA

Robert J. Kulas


A primary part of any estate plan is your last will and testament. Even if you develop a more complicated plan that relies on trusts to protect and distribute your assets, your will still plays an important part of your plan.
The foundation for any comprehensive estate plan is a last will and testament. Although a thorough estate plan typically includes documents other than just a will, a will is certainly a good starting point. Understanding what a will is as well as what you can and cannot accomplish by creating and executing a will is essential.

What Is a Last Will and Testament?

A last will and testament is a legal document that directs how your property is to be disposed of upon your death. State laws determine what the legal requirements are for the creation and execution of a will. In Florida, the following requirements must be met: You must be 18 years old You must be of sound mind The will must be written The will must be witnessed following a specific legal procedure The legal formalities for creating and executing a will are very important which is why it is usually not a good idea to use boilerplate, or do-it-yourself, will forms that could be out of date, inaccurate, or lacking in the formalities required by law to be valid.

What Happens If You Die Without a Will?

When someone dies without a will, the person is said to have died intestate. When that happens, the intestate laws of the state of Florida will determine how estate property is distributed. Only your legal heirs will receive

Robert J. Kulas, PA


property if you die intestate. Friends, charities, and anyone else not related to you other than a spouse will receive nothing. Even distant relatives whom you may have been very close to, such as an aunt or nephew, will likely receive nothing from your estate if you die intestate.

What Can You Accomplish With a Will?

In theory a will is capable of distributing all of your estate assets; however, in practice most people include ancillary documents that are geared toward accomplishing specific goals in their estate plan. A will allows you to do the following: Appoint the executor of your estate.

If you die without leaving behind a will, or a court determines that your will is incomplete or illegal, Florida has intestate succession laws that will govern who inherits your property. These laws choose different people based on their relationship to you and who survives you after your death.

Make specific or general bequests. A specific bequest might be I give my stamp collection to my nephew Bob Smith while a general bequest might be I give my entire estate in equal shares to my three children. Nominate a guardian for minor children in the event that both parents die before they reach the age of majority. Authorize the sale of estate assets after your death. Determine who bears any tax burden. Create a testamentary trust.

What Cannot Be Done With a Will?

One of the most important areas of estate planning that cannot be handled through a will is your incapacity plan. If, for any reason, you become unable to handle your own financial or personal affairs, you have the legal right to decide ahead of time who will handle them for you; however, a will cannot accomplish this goal. Your will only becomes effective upon your death, meaning that incapacity planning must be done outside your will. Inter

Robert J. Kulas, PA


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Wills that are drafted without the help of a qualified estate planning attorney have a higher chance of error. Wills with a lot of errors may be considered invalid in Probate court. When a Will is considered invalid, the court decides how your assets will be distributed, which may cause additional court fees for surviving loved ones, petitioning to receive certain things. Dangers of Drafting Your Own Will: DIY Wills are easier to contest because many Do-It-Yourself Wills are hard to customize to the specific needs of the testator, thus leaving vague answers about the estate Greater risk of having an invalid Will because a Will isnt valid until witnessed and executed properly in some states Drafting your own Will can make it difficult to remember to update it for certain life changing events such as divorce or the birth of a dependent

vivos or living trusts must also be created outside of a will. Again, because your will only takes effect when you die, if you wish a trust to become effective prior to then it must be created outside of your will. While there are numerous other areas of estate planning that are better handled outside of a will, your incapacity plan and living trusts are two important areas.

Can You Dispose of Property Any Way You Want in Your Will?
For the most part, you may choose to give your property to anyone you want under the terms of your will. There are, however, situations in which the way that property is titled prevents you from giving it away in your will. In Florida, those include: A homestead if you are survived by a spouse or minor child. There are some exceptions to this general rule. A life estate because your legal rights in the property terminate upon your death. Certain types of jointly titled property. In addition, Florida law prevents you from completely disinheriting your spouse unless a marital agreement was properly executed. A spouse has a right to a portion of your estate in Florida. Exactly what your spouse is entitled to depends on a variety of factors, so be sure to consult with an estate planning attorney if you need specific details about spousal rights.

Changing or Revoking a Will

A validly executed will remains in effect until you change it, revoke it, or you die. If you need to make a change to your will, you cannot simply cross something out or add something new. There are very specific procedures required to make a change in your will. Creating a new will typically serves to revoke any previously executed

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Robert J. Kulas, PA


Essentially, probate is the process where a deceased persons property gets transferred to new owners. While probate doesnt cover all property a person leaves behind, the probate process is basically the same wherever you live.
wills, or you may explicitly revoke a will if you wish to for any reason. Common reasons while you may wish to change your will include: Marriage Divorce Birth of a child Significant change in assets Relocation to a new state Change in laws

Register for an upcoming estate planning seminar or request a private seminar for your group.

Must a Will Go Through Probate?

Contrary to what many people believe, the existence of a last will and testament usually decreases the costs involved with probating an estate. Dying intestate can be expensive because the court must follow very specific procedures to locate and determine your legal heirs in addition to all other probate procedures. The more complete your estate plan is the less room there is for someone to challenge your plan or argue about what your wishes were. There are simplified probate procedures for small estates in Florida that can further minimize costs and shorten the amount of time it takes to probate an estate. Large, complex estates will usually need to go through formal probate which can takes months, even years, to complete. As a general rule though, the more detailed

Robert J. Kulas, PA


About the Author

and more complete your estate plan, the less time and expense will go into probating your estate.

How Do I Know If I Need a Will?

The simple answer to that is that everyone needs a will. Even people with few assets can benefit from a will. Appointing a guardian for your children, making sure that your best friend receives your favorite painting, or ensuring that your son the lawyer serves as executor of your estate are common reasons why someone with even a small estate needs to execute a will. The Florida Bar, Do You Have a Will Pamphlet Meredith College, Basic Will Preparation Guide AVVO, Understanding the Basic of a Last Will and Testament

Robert is the founder and principal shareholder in the Port St. Lucie and Vero Beach law offices of Robert J. Kulas, P.A. Because he believes that helping his clients manage their personal affairs wisely is one of the most worthwhile professional activities he can pursue, he has devoted his practice exclusively to estate planning. He has invested considerable time and energy helping to educate others in estate planning and is widely regarded as a dynamic speaker who can make even the most complex estate planning issues easy to grasp. He provides free monthly seminars to inform the public on the importance of proper estate planning. Over the past fifteen years, thousands of people have come to hear him speak. Helping people understand their options for estate planning is very important to me, Robert said. I like to think that people in our community can look to me for the kind of quality information they need to decide what is best for them and their families.

Robert J. Kulas, PA