Wills
It is very important to plan for the day you will no longer be with your loved ones. Many laws applicable to the understanding and admissibility of wills exist. You do not want to leave any questions remaining after you are gone, or your loved ones will be left to pick up the pieces and litigate the issues unmentioned. Please call today for a consultation regarding your estate planning choices
The general will should include a title and introduction, instructions regarding the disposition of your body (burial, cremeation or donation under the Floirda Anatomical Gift Act), the methods by which debts and taxes should be paid upon your death, specific devises to those you wish to receive specific property and proper legal signatures. Without following the necessary procedures, your will may be considered holographic or otherwise unable to be admitted to probate.
A title and introduction to a will help to remove doubts regading testamentary intent. The Florida Anatomical Gift Act permits the donation of the body, or parts thereof, for medical research or other purposes. These can be made by gift (inter vivos) or by will, but are preferrably made via inter vivos gift because there is always a possibility that a will may take longer to probate than expected or may be difficult to locate.
When making a will, the payment of debts should not be discussed in a general provision, because the law imposes an obligation on the personal representative to satisfy the debts according to Florida Statute 733.707. It can cause problems to mention some debts, because there may be debts that cease to exist (i.e. the statute of limitations may have run for collecting or a bankruptcy proceeding has discharged the debts) and mentioning such could revive them.
There may, however, be methods preferred to accomplish the satisfaction of debts that need specific discussion in the will. For example, the testator may wish to have certain debts paid from certain accounts. There may also be a preference to the order of debt satisfaction because the testator may wish, for example, for a real estate mortgage to be paid off before passing to a beneficiary. Absent a specific provision, the property would pass subject to the mortgage according to Florida Stattue 733.803.
A will may also establish an order of preference as to which assets are to be used to satisfy debts. In the absence of such a direction in the will, property that would pass by intestate succession would be used first to satisfy debts, and when that property is exhausted (or there is none) the residue of the estate would be used (See Florida Statute 733.805(1). Accordingly, the testator might wish to guarantee the residuary devisee a certain minimum amount if desired.
The payment of taxes, Florida and Federal Estate Tax, is apportioned pursuant to Florida Statute 733.817, absent a specific provision in the will or other governing instrument. But, if the testator wishes to shift/apportion the estate tax burden in an alternative method, the will should be drafted with careful attention to the nature and extent of additonal tax burdens. Furthermore, a very high degree of specificity and particularity is required for the clause to be effective. (i.e. To require the estate to bear the burden of taxes upon property passing outside fo teh will, there must be clear, unequivocal and specific direction in the will to that effect.) No set words are required, but the intention to shift burdens must clearly appear.
Transfers between spouses pass free of estate and gift tax liability according to I.R.C Section 2056. The benefit of theunlimited marital deduction can be accomplished by leaving all estate assets to the surviving spouse. A requirement that the surviving spouse shall survive the testator or testatrix by any period of time up to six months does not render the deduction lost. For more information, see I.R.C. Section 2056(b)(3). Besides this deduction, both spouses have the unified credit and other deductions to reduce taxes. When all property is left to the surviving spouse, the unified credit is lost and assets will be taxed in the second spouse's estate. Be sure to ask about the creation of a qualified terminable interest trust.
The above information is general and subject to changes in applicable laws regarding wills, jurisdiction and other factual and legal factors. It is best to speak with an attorney to determine the best methods of estate planning to effectuate your wants and needs upon death. For a consultation, please contact The Law Office of Maggie Jo Hilliard, P.A. at (904) 247-7600.