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Miami Estate Planning Law Blog

When should you update your will?

It might be easy to assume that once you have written your will, there is nothing further you need to do about your estate planning. However, it is important for you and other Florida residents to understand that wills should be updated periodically. The will that you wrote 10 years ago is not likely to accurately reflect your wishes or circumstances today.

There are a few conditions that necessitate an updating of your will, or at least a review to be sure the wishes you had a few years ago still apply, as FindLaw explains. For example, you might want to change your will in the following situations:

  • You got married or divorced.
  • You had children or adopted since the last time you updated your will.
  • Your children reached adulthood.
  • Someone who was named in your will passed away.
  • You had a significant increase or decrease in your assets.
  • You wish to add or exclude someone from your will, or you want to change your designated executor.

Unusual will types that can be easy to contest

As you know, it is important to have a solid estate planning strategy in place to protect your assets and the inheritance you want to leave to your loved ones. At the Law Offices of Frye & Vazquez, P.L., we have a full understanding of the different types of wills and trusts available to Florida residents, and that some types are stronger and less easily contested than others.

HowStuffWorks explains several types of wills that you are unlikely to employ, but which the courts may still recognize. A deathbed will is one that you might create when you are facing certain death. You would need witnesses to record your final wishes. This type of will is particularly vulnerable to being contested in probate court, as relatives might claim you were mentally incapacitated being so close to death or that the unusual circumstances compromised your ability to create a concise, fair will. Oral wills are usually hastily spoken to witnesses, rather than written. You might give an oral will if you don’t have time to write it; for example, you are in an active combat situation.

Choosing which assets to donate to charity

If a Florida estate owner wants to leave a donation to charity, they should be sure to do so in the way that avoids the most taxes. Often, people use a will or trust to give to charity, but that can be a mistake.

As an example, a person might have a home, an after-tax savings account and an IRA that are each worth $1 million. The person may leave the home and IRA to the children. From the after-tax savings account, $900,000 might go to the children and $100,000 to charity.

Why estate planning is critical for young families

It is important for young families to think about the future. This doesn’t just include their goals, but also the potential for tragedy occurring. While potential tragedies aren’t fun to think about, considering the possibility allows parents to plan and prepare. This can help protect their family should tragedy strike.

One important preparation in this regard is estate planning. However, a survey by Caring.com suggests that young parents are less likely to have an estate plan than the average American adult. According to the survey results, just a little over a third of parents with children under 18 (36 percent) have such a plan. Meanwhile, the percentage for U.S. adults in general was 42 percent.

The potential problems with homemade wills

At the Law Offices of Frye & Vazquez, P.L., we understand that you have a busy schedule, and you want to save time as well as money. Like many other Floridians, you tackle many issues on your own, and you are considering writing your own will. However, it is imperative to understand that many things can go wrong if you handwrite your own will.

According to FindLaw, a handwritten will is known as a holographic will. Holographic wills are legally recognized in many states, provided the testator (maker of the will) meets numerous requirements. The conditions you would need to meet include the following:

  • You must be a legal adult or legally emancipated, if a minor.
  • You must be mentally competent.
  • There must be evidence that you wrote the will of your own accord and you were not unduly influenced by another.
  • At least two witnesses watched you sign the will and signed it themselves.

The importance of estate planning for everyone

Some people in Florida might think they do not need an estate plan because they are single and do not have any children. However, estate planning is important for all adults.

If a person dies without a will, that person's assets will be distributed according to state law. Even if the law matches a person's intentions, having a will can make the process go more smoothly.

Why would I need a durable power of attorney?

As you know, planning your estate and your loved ones’ inheritance can be complicated in even the best of circumstances. What if you are concerned that a mental incapacity will compromise your decision-making abilities in the future? It may be wise for you and other Florida residents to consider a durable power of attorney, but what exactly is it?

We have explained powers of attorney previously in this blog. As FindLaw explains, a power of attorney gives someone else – usually called your attorney-in-fact or your agent – the ability to make decisions on your behalf if you are incapacitated. Depending on whether you create a limited, general or medical power of attorney, each choice has different, specific purposes. “Durable” in each case means that the power of attorney will continue to be effective after you become mentally incapacitated.

Choosing the executor of your will is an important decision

You have decided to create your will, which is one of the most important things you will do for your loved ones. However, at the Law Offices of Frye & Vazquez, P.L., we know that the choice of whom to carry out your final wishes is also vital. You and other Florida residents should think carefully about the best person for the job.

FindLaw explains that close family members, such as your spouse, a sibling or one of your children, are the most common people who serve as executors of a will. You would want someone you can trust to be organized and honest to ensure your wishes are honored. However, not everyone fits this description, even relatives. You might think twice about naming someone with the following characteristics as your executor:

  • Has a bitter rivalry with his or her siblings
  • Has been known to make poor financial decisions
  • Is passive and may easily give in to the demands of others
  • Has a significant criminal history
  • Struggles with substance abuse
  • Does not care about the wishes or needs of others

How can you breach your fiduciary duty?

When you choose to accept the responsibility of becoming the trustee of a trust or the executor of a Florida estate, you become a fiduciary. What this means is that you must work for the benefit of the trust or estate in performing your duties rather in your own interests. In other words, you must follow the wishes of the trust’s grantor or the estate’s decedent.

The beneficiaries of a trust are the people named as such therein. The heirs and/or beneficiaries of an estate are the people named in the decedent’s will. As FindLaw explains, you have a fiduciary duty to act in the best interests of these beneficiaries and/or heirs. Should you breach that duty, they can sue you.

What you need to know about Florida estate and inheritance taxes

At the Law Offices of Frye & Vazquez, PL, in Florida, we know how hard you work throughout your life to accumulate wealth. We also know how hard you work to protect this family wealth so that you can pass it on to your heirs. The last thing you want is for your estate to have to pay a huge estate tax and your heirs to each have to pay an inheritance tax.

As SmartAsset.com explains, Florida is a very tax-friendly state. Not only do we have no state income tax, we also have no state estate tax, inheritance tax or gift tax. Florida abolished its estate tax, a/k/a the dreaded "death tax," in 2004.

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