3 – What a Will Doesn’t Do (Part 2)

by | Jul 13, 2015

WHAT A WILL DOESN’T DO (PART 2)

By: Barry E. Haimo, Esq.
July 13, 2015

In a prior post, we discussed what a Last Will and Testament does. In this post, we will discuss what a Last Will and Testament does NOT do.

What a Will Does

Essentially, a Last Will and Testament contains a deceased person’s directions with respect to a few important areas. They include appointing your personal representative. This is often referred to as the “executor” in some states. It also appoints guardians over the person and property of your minor children.  The Will also designates your beneficiaries of your estate. This is who will inherit from your estate. It also includes your burial provisions should you have any last requests. These are all very important things over which you have the right to exercise control. If you do not do so, your state will make these decisions for you.

What a Will Does NOT Do

Avoid Probate

It is commonly misunderstood whether a will avoids probate. To review, probate is the legal process through which a deceased person’s affairs are formally settled. Probate is only necessary for a person who passes away (called a decedent or deceased) owning assets in his or her name alone. Therefore, whether probate is necessary is determined entirely on how the deceased’s property is titled, not whether he or she has a validly executed Will. Jointly owned property, property in other entities, such as a trust or business entity, and assets with contractual beneficiaries all pass outside of probate. Further, as indicated above, a Will merely provides directions. Those directions are carried out in probate. If you do not have a Will, then your state will make the decisions for you based on the statute, which in Florida is called the “laws of intestacy” or the “laws of intestate succession”. Intestate means to die without a validly executed will. Importantly, this applies even if you have a Will, but it was not validly executed or was invalidated by what could be a number of reasons.

Avoid Guardianship

Similar to the misconception that a Will avoids probate, a Will also does not avoid guardianship. Guardianship is the legal process through which someone is appointed as the fiduciary over a person with mental incapacity. It occurs during life, and generally occurs when such a person cannot take care of themselves any longer. Quite surprising to most people is that a Will only takes effect upon death. Therefore, a Will does not address incapacity issues. To put it in a different perspective, making a Will without the expertise of an attorney that practices exclusively in this area is like the ultimate gamble; you won’t even know if it works out the way you wanted. Most people feel a sigh of relief after they are finished because they know they well positioned their family’s affairs for foreseeable future.

Protect Assets From Creditors

A Will does not directly protect against creditors of the deceased or creditors of the beneficiaries of the deceased. However, it can direct the personal representative to devise assets to beneficiaries in trust. A properly structured trust will protect the deceased’s beneficiaries’ interests from their creditors and themselves, if they are financially irresponsible. Trusts should always be considered but are not appropriate for everyone.

Author:
Barry E. Haimo, Esq.
Haimo Law
Strategic Planning With Purpose
Email: barry@haimolaw.com
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