Although our office has drafted hundreds of wills over the past 20 years, as Weston will attorneys we need to advise you that the modern, predominant way to plan is by using a living revocable trust, not a will. Why? A will, contrary to what some people think, needs to go through a costly, time consuming and sometimes stressful legal process called probate. Most persons want to avoid the costs of probate. Also, a will does nothing to avoid the equally costly legal process in event of mental incapacity called guardianship.
Despite this trend, there are circumstances where a simple will coupled with a Lady Bird Deed (if the person owns a home) may be the most cost efficient option. More on the Lady Bird Deed below. A simple will may be best if the elder person has no real estate other than the homestead and only a few investment accounts. With proper beneficiary designations on all financial accounts it may still be possible to avoid probate.
Note #1: Simple wills are not viable options when there are minor children, adult children who are poor money managers, or adult children in tenuous marriages. Also, simple wills are usually not advisable in second marriage circumstances. If these issues apply to your family, it is important to consult with an experienced Weston will attorney.
As mentioned, a Lady Bird Deed (also known as an Enhanced Life Estate Deed), may be a good option for an elder person because it is a way for an elder person to retain full control of his or her house for life. Most importantly, the homeowner retains the right to sell the property when she wishes. The elder person retains a life estate in the house meaning the person has the full right to live in the house for her lifetime; upon the death title passes without probate to the remainder beneficiaries, which can be the elder person’s children. For more information, see Avoiding Probate In Florida.
Note #2: In addition to a simple will, every person should also have a strong, up to date, Florida Durable Power of Attorney because no one wants to have a judge – who would be complete stranger to you – make intimate, personal decisions about your personal finances or daily welfare. For more information, see What Is A Durable Power of Attorney? and an equally strong Health Care Surrogate. For more information, see Changes To Florida’s Health Care Surrogate Law.
ConclusionBefore any person considers using a will as an expression of one’s wishes upon death, it is important to compare the benefits of a simple will with a living revocable trust. If after this analysis, the will is the best option for the person, then care should be taken to make sure that all assets are properly titled to avoid probate. If you have house, a special type of deed, commonly referred to as a Lady Bird Deed, may be used to avoid the cost of probating the house. As Weston estate planning attorneys, we will work with you to help you decide what is the best option for your family.