Wills

A will is a written document to direct the disposition of property titled in the maker's name alone after the maker's death. It can also name the person to administer the estate (Personal Representative), guardians of property and person for the maker's minor children, and provide directions for disposition of one's body.

One may also include a trust to take effect after death in the will (testamentary trust) to provide for management of assets and payment of expenses for a beneficiary not deemed capable of these tasks such as a minor child or financially improvident beneficiary.

The will must be signed and witnessed according to the law of the maker's domicile at the time made. A will has no legal effect until after the maker dies, and it is admitted to probate by the court.

If one dies without a will (intestate), property in the decedent's name alone is distributed as directed by the intestate laws of the state where property is located. As with a one-size-fits-all garment, these laws cannot meet the needs of all people. Obviously, anyone who desires to limit government intrusion in their life should make a will.

A will may not dispose of all property in which the decedent holds an interest. Property titled in the name of the decedent and spouse (tenants by the entireties) automatically is the property of the surviving spouse. Property held in joint names with right of survivorship passes to the surviving title holder. Bank and brokerage accounts set up as Pay on Death to X or In Trust For X, pass to X by virtue of the title. Life insurance policies are paid to the designated beneficiary as are IRA accounts and 401 (k) accounts.

Consider a husband and wife, without wills, each having children by a prior marriage, with all assets held as tenants by the entirety. They are in a car crash and the husband dies instantly. The wife survives to go to the hospital and dies 2 hours later. Upon the husband's death, the wife was sole owner of all property. Upon her death without a will, all property passes to her children. The husband's children inherit nothing.

There are many laws designed to protect the interests of spouses and children, but it is up to the individual to get competent counsel to insure his/her family's needs are met.

Whether you are looking for a comprehensive estate plan or you want help through the probate process, you want a lawyer who will answer your question, handle your concerns, and offer you sound advice based on years of experience.

From her offices in Coral Gables, attorney Susan E. Durré is dedicated to helping her clients make good decisions for themselves and their families. When you walk into her office, you will feel relaxed and ready to make an informed decision.

Coral Gables Estate Planning & Administration Attorney

Please call (305) 444-4042 for further assistance.