We firmly believe that everyone over the age of 18 should have a Last Will and Testament (“Will”), trust or other provision for the distribution of property, along with necessary health and financial documents. Having certain common Will provisions helps ensure your family and your wealth are protected.
Because if you should die without a Will or trust, your property (money, digital assets, etc.) will be distributed according to Florida’s laws of intestacy.
Intestacy removes all the decisions regarding the distribution of your property in your hands and gives it to the law and probate judges. If you die intestate, your estate will go through the time-consuming and expensive process of probate.
The solution is to work with an experienced estate and probate attorney and get a Last Will and Testament (“Will”) and a revocable living trust put in place.
Last Will and Testament
A Will is a written legal document that conforms to all requirements of state law. It expresses the desires of the testator (i.e., person making the Will) with regard to the distribution of his/her assets. Not all of your assets will pass through your Will, but some of them may.
Your Will can also be used to appoint a guardian for your minor children and to name someone you trust to act as your personal representative (or executor) for the purposes of administering your estate after your death.
At the Law Offices of Samantha J. Fitzgerald, we believe that, when it comes to estate planning and crafting peace of mind, there is no “one size fits all.” Each estate plan we draft is customized to the client’s unique situation and desires of our client.
Nevertheless, all Wills have certain necessary and common Will provisions.
Here are 3 common Will provisions and the rationales behind them.
1. A residuary clause
A residuary clause is a Will provision that establishes who will get the residue of your estate. The residue is the amount that remains for the beneficiaries after all estate expenses have been paid. It also encompasses any assets or property not specifically mentioned elsewhere in the Will, or that fail—for example, when a beneficiary predeceases you.
The purpose of such a clause is to capture any forgotten or failed gifts and allow them to go to your specific beneficiaries. Without a residuary clause, the probate court will decide who inherits the residue of your estate in accordance with the intestacy laws.
2. Attestation clause
Because a Will is not valid and enforceable unless it conforms to all statutory requirements regarding proper execution, an attestation clause is a common and necessary part of any Florida Will.
Florida law requires the testator to sign at the end of the Will. It also specifies that the testator’s signature must be witnessed by two witnesses in the presence of the testator and each other. The attestation clause serves to establish that the witnesses did indeed witness the testator’s signature.
It is also common to include a self-proving affidavit at the end signed by the testator before a notary attesting to its validity.
3. Appointment of a Personal Representative
Another common provision in any Will is the appointment of a personal representative or executor. Your personal representative is the person who will be responsible for handling your probate estate and making sure the terms of your Will are followed.
A personal representative is a fiduciary. His or her duties require him/her to act in the highest best interest of the Will’s beneficiaries. The person appointed as a personal representative in Florida must be honest and trustworthy, and must meet the law’s statutory requirements.
Your Will, with all of its provisions, is one of the most important documents you will execute in your life. So make sure that you execute a fully enforceable Will that meets your specific needs by consulting with an experienced estate and probate lawyer near you.
Estate Planning That Makes Sense for You and Your Family.
Helping individuals plan their estate and navigate the probate process is what the attorneys at the Law Offices of Samantha J. Fitzgerald do. We provide common will provisions within individualized estate plans and expertly guide individuals through the complex probate process, and capably handle all aspects of the creation, administration, and settlement of trusts as well. Contact us here or email us at: [email protected]