Whether or not you need a will is dependent upon a lot of different factors. It’s going to depend on whether you’re a single person, a married person, a divorced person, a widowed person, whether or not you have children, a lot of different factors. And so until I get your particular factors, I can’t say for sure, but let me tell you in general, it’s not universally needed.
Now, it’s a great idea to have a will in certain circumstances, but if you can do your estate planning without a will, and avoid probate, more power to you. Especially when I have older clients, who either are now a senior couple [and] all their children are out of the house, and they know that the house that they’re in is going to be the house they’re in until they pass out of this lifetime. In those instances, it’s often very easy to set things up that they don’t need a will.
What we do is, we use a device that’s called a “ladybird deed.” It’s a deed that gives them the ability retain control of the house during their lifetimes, but to automatically have it go to their children (or anybody really) after their lifetime, simply on the strength of a death certificate being filed with the county after they pass away. So it’s very neat. All it costs them is the cost of the deed and the recording of that. In addition, those people can set up their financial accounts to be either POD or TOD accounts. POD stands for “payable on death.” TOD stands for “transfer on death.”
The difference is, a POD account typically refers to something that just has cash in it. “And this $10 bill is just as good as this $10 bill,” and so you just pay it out, whatever it happens to be. The TOD usually refers to an account that has some sort of securities or stocks, bonds, mutual funds, something like that in it, where you don’t necessarily want to be in the situation where you have to sell that security to then distribute the value to somebody, you just want to change the name from one person to another.
And I have a very standard set of instructions that I give to people so that they can go to the bank or financial institution, show the letter that I give them, and then get things set up so that, again, upon their death, their beneficiaries can come in and with just a death certificate and their own IDs, they can get the assets transferred to them immediately.
Now, if your estate is a bit more complicated, if you want to make sure that certain people get certain assets and you have a large number of assets, then it’s a good idea to have a will. It’s especially important if you want to exclude someone from your estate. If you have five children and unfortunately you… don’t have a great relationship with some of them, or what actually is more common, is that I’ll see people and they’ll say, “Y’know I’ve got three kids. Two of them have it made. Y’know… they’ve got great jobs. They’ve got way more money than I do, but my youngest child has always been sort of ‘the struggling artist,’ and I want to make sure that she’s going to be taken care of after my lifetime, and the others, they’re going to be fine with that.”
Well there you’d want to have a will, and you’d put language in the will that says that you’re excluding the other two, (not out of any rancor or anything like that), but just because you want to take care of this other one). You also have the ability, in a will, to structure things that you might have what’s called a “springing trust,” that the will would kick off a device that would take care of people for a number of years after your lifetime.
[A will is] especially important if you want to exclude someone from your estate.
Now, personally, I think that if you’re going to have a trust, you might as well have a living trust (and I can tell you about that a little bit later) but there are ideas in a will that will give you the structure that you want, and for some people it’s just piece of mind.
I had one gentleman who I told him, “You really don’t need a will,” but he absolutely wanted one, and so I prepared a will for him. If you have a situation where there’s a couple and they both have children from prior marriages (or either one of them has a child from a prior marriage), then a will is usually a good thing. The thing is, if you pass away without a will, you are what’s called “in testate,” and under those circumstances there are laws in Florida that say who’s going to get what share of the estate. If that’s not what you want (and very frequently it is not what you want) you have to have a will to make something different happen.
So whether or not you need a will depends upon your particular circumstances, but I’ll only do one for you if you really do need it.
– David Pilcher is an experienced estate planning and probate attorney with Bogin, Munns & Munns, a full service law firm with offices in Orlando, Clermont, Kissimmee, St. Cloud, The Villages, Orange City, Titusville, Daytona Beach, Ocala, Melbourne, Gainesville, and Leesburg, Florida. Mr. Pilcher welcomes questions and comments regarding the above and can be reached at firstname.lastname@example.org.
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