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Wills
It’s an unfortunate fact of life, but you’re unable to take your worldly goods with you when you take your final bow (even if you plan to come back in a later life). Therefore it’s preferable to bequeath them to someone you love, rather than let the IRS have them or leave a mess that everyone will fight over (unless that’s your intention!). A surprising number of people in America die intestate, i.e. without making a will, with the result that their estates are distributed according to local state law rather than as they may have wished. The biggest problem of not leaving a will is often the delay in the winding up an estate (while perhaps searching for a will), which can cause considerable hardship and distress at an already stressful time. Note that when someone dies, the estate’s assets cannot be touched until estate tax (see above) has been paid and probate (the official proving of a will) has been granted.
There are two main types of inheritance law employed by US states: common law (42 states) and community property law (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas and Washington). In common law states, which includes Florida, the estate is divided among all surviving relatives including the spouse, children, parents and others. In community property states, all assets acquired by a couple during their marriage are usually deemed to be owned jointly, with the exception of property acquired through inheritance, gifts or compensation. A valid will made in another US state is usually legal in Florida, although it’s advisable for residents to make a new will under Florida law.
All adults should make a will, regardless of how large or small their assets. If your circumstances change dramatically, for example you get married; you must make a new will, as marriage automatically revokes any existing wills. Both husbands and wives should make separate wills. Similarly, if you’re separated or divorced, you should consider making a new will, but make sure you have only one valid will. You should check your will every few years to make sure it still fits your wishes and circumstances.
If you’re a foreign national and don’t want your estate to be subject to US law, you may be eligible to have your will interpreted under the law of another country. To avoid being subject to US estate and gift tax laws, you must usually establish your domicile in another country. If you don’t specify in your will that the law of another country applies to your estate, then US law will apply.
Having a Florida will for your Florida assets speeds up the will’s execution and delivers you from the long and complicated process of having a foreign will executed in America. Note that if you have two or more wills, you must ensure that they don’t contradict or invalidate each other.
You can obtain ‘fill-in-the-blanks’ form wills costing around $3, which are designed for parents or couples with modest estates. These usually help you leave your estate to your children or spouse, let you give money to one other person or to charity, and usually allow you to name a guardian and an executor. Under Florida law, two witnesses are required to the signature (not the contents) of a self-proved will, who cannot be either a beneficiary or your spouse, and the signing must take place before a notary or commissioner of oaths. A useful publication for anyone owning a home in Florida is How to Make a Florida Will by Mark Warda. The American obsession with TV has led to the practice of recording wills on video, where the deceased makes a speech to his relatives and beneficiaries. This is shown after he has departed this life and has no legal validity, as a will must still be drawn up in the usual way to be legal.
You will also need someone to act as the executor of your estate. Your bank or lawyer will usually act as the executor, but you should shop around a few banks and lawyers and compare fees. In Florida, the cost of probate is limited to 3 per cent of an estate valued at up to $1 million, after which the percentage decreases gradually. An alternative to writing a will is to create a ‘living trust’, thus eliminating the lengthy (and costly in some countries) probate process. There are a number of books about living trusts including The Living Trust Handbook by David E. Miller and Understanding Living Trusts by Vickie and Jim Schumacher.
Keep a copy of your will in a safe place (e.g. a bank) and another copy with your lawyer or the executor of your estate. You should keep information regarding bank accounts and insurance policies with your will(s), but don’t forget to tell someone where they are! Find More information about wills >>
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