3 Things a Will Can Do and 3 Things It Can’t

Many people may find that the thought of preparing a Will is unsettling, if not uncomfortable. It reminds us that not only are the people and things we love temporary, but of our mortality as well. As unpleasant as that may sound, this is exactly why a Will is unquestionably necessary!

Recognizing that having an up-to-date Will is important, let’s discuss what Florida state law says a will has the power to do, and what it does not.

What Your Will CAN Do

  1. Your Will gives you the power to leave your property, assets and belongings to anyone of your choosing, not just your heirs and creditors. It also allows you to separate assets so that you can distribute remaining valuables amongst as many (or as few) people or organizations as you like.
  2. In addition to your personal belongings, your Will allows you to select a legal guardian for any minor children you have. This provision however is not ironclad. In some cases, selecting a legal guardian other than the child’s other parent can be contested in court.
  3. You will gives you the authority to choose an Executor of your Will. This means you can decide who will be responsible for administering/distributing your estate upon your passing. Florida law also states that you may waive any bond requirements for the Executor of your Will, which will generally lessen the financial cost of probate.

What Your Will CAN’T Do

  1. Contrary to popular belief, even if you specifically request in your Will that you’d like a particular person to have access to your bank accounts or other funds, they may not do so. The Executor of your Will is responsible for collecting and distributing any funds from your accounts to the named individuals.
  2. Your Will does not allow you to gift money from any existing retirement plans, IRAs, 401Ks, or pension plans for which you have a named beneficiary on file. Florida state law says that the same holds true for any life insurance policies you may have. Typically, the beneficiary on file will be the one to receive the proceeds from any of these accounts, despite what is stated in your Will.
  3. Your Will cannot be used to gift assets that are jointly titled. For instance, if you own a piece of property with a sibling and you pass away before your sibling, you may not gift that property to your children. In this case, your sibling would then hold 100% ownership of the property.

Contact Us

A Will can be extremely instrumental in ensuring that your hard-earned belongings and loved ones are properly cared for after your passing, but it isn’t magic. Many Florida laws exist to ensure that the probate process is carried out in a fair and lawful manner. To make sure that your wishes will be executed accordingly, it is best to discuss your Will and estate planning objectives with a qualified Florida probate attorney.

The law offices of Luis Barreto & Associates offer free initial consultations with attorneys well-versed in all of the intricacies and details that occur with Florida probate law. Give us a call  at (305) 358-1771 or contact us so we can help you start planning today.

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Written by Luis E. Barreto

Luis E. Barreto

Luis is a probate and guardianship litigator with over 23 years of experience in the field. Determination of heirs, will contests, breaches of fiduciary duty, removal of personal representatives, guardians and trustees are just some of the types of litigation he addresses. In addition, he administers non-contested estates and guardianships.