Creating your Last Will and Testament, in a way, can appear to be a simple affair. At a basic level, a Last Will and Testament is supposed to direct how the assets you own are to be distributed to your loved ones after you have passed away. However, did you know that there are other important clauses and different requirements to your Last Will and Testament that should be considered? There are a lot of different clauses that your estate planning attorney may recommend when it comes to preparing an all-encompassing Last Will and Testament and this article will discuss some of the most common clauses you can expect to see in one.
Care of Remains
Many people, during their lifetimes, have made arrangements for how they would like their remains to be handled upon their death. Some, however, may not have made any arrangements, but have an idea that they would either like to be cremated or buried after passing away, for instance. Regardless of how you wish your remains are to be handled, you have the option to notify your heirs of how you would like your remains handled upon your death in your Last Will and Testament. However, you should discuss with your estate planning attorney if this is the only means by which you would like such a notification to be made. For instance, such designations could also be made in your Designation of Healthcare Surrogate, if you have one. Such a strategy could be even more helpful than placing it in your Last Will and Testament because chances are the first time any of your loved ones reads your Last Will and Testament could be after they have taken care of your remains on their own. Thus, it could be likely that they would not have even known your wishes. Guidance from an experienced estate planning attorney can ensure that your wishes are carried out as specified.
Nomination of a Personal Representative
In Florida, you have the ability to name who the Personal Representative will be in your Last Will and Testament. A Personal Representative, sometimes called an Executor in other states, is the person (or persons) who is in charge of administering your estate. The Personal Representative of your estate will have several duties such as collecting your assets at the time of your death, paying off your debts, filing your tax returns (if any), and ultimately distributing your property as either you designate or Florida law designates, depending on whether you have a valid Last Will and Testament. People tend to nominate people they trust to be the Personal Representatives of their estates, such as a close friend or a close family member.
Generally speaking, you are allowed to name anyone as your Personal Representative, but Florida law sets parameters on who is actually allowed to serve as Personal Representative of your estate. For example, in order to qualify to serve as someone’s Personal Representative, under Section 733.303, Florida Statutes, you may not have a felony conviction, must be over the age of eighteen (18), and you must be a Florida resident (unless you are a blood relative of the deceased person). If the person you wish to nominate as the Personal Representative of your estate does not meet the qualifications specified under Florida law, a judge will not allow him or her to serve as your Personal Representative.
Tax Considerations
There is a common idiom that states that “Nothing is certain except for death and taxes.” Knowing and accepting that death and taxes are inevitable issues we will come across, it is fortunate that we have the ability to put in place comprehensive estate plans to manage our assets and affairs at death and to direct how taxes are to be handled. As mentioned above, your Personal Representative will be responsible for the payment of your taxes – whether that be your final income tax return or an estate tax return after you have passed away, if either are necessary at all. Did you know that you have the ability to designate from which assets taxes must be paid? Be sure to discuss this with your estate planning attorney to avoid the wrong beneficiary’s inheritance from being diminished because taxes needed to be settled. Furthermore, with proper insurance planning, you can ensure that your estate’s debts, including tax debts, can be handled with liquid assets.
Guardianship of Minors
It is difficult to think about passing away and leaving minors without their parents. It may be of some comfort to know that you have the ability to name who you would like to serve as the guardian of your minor children upon your death. Though, like naming a Personal Representative, as discussed above, nominating someone to be a guardian comes with its requirements under Florida law. Under Section 744.309, Florida Statutes, amongst other prohibitions, someone who has been convicted of a felony is disqualified from serving as a guardian. It is important to sit down with your estate planning attorney to determine if your choice of guardian for your minor children upon your demise would be acceptable under Florida law. Furthermore, perhaps your estate planning attorney may have a different strategy for naming such a guardian because, similarly to the issues mentioned when specifying your burial wishes, it is possible that your loved ones will not even review your Last Will and Testament until well after your demise. Thus, until your Last Will and Testament is actually reviewed, your minor children may not know who has been nominated as their guardians. For this reason, your estate planning attorney may suggest other options for making this designation.
No Contest Clause
Finally, another clause to consider is a No Contest Clause. In such a clause, it mandates that if any of your beneficiaries are to challenge your Last Will and Testament, the challenging beneficiary will forfeit his or her inheritance. Though it may seem like a harsh punishment, a challenge to a legal Last Will and Testament could mean that your estate could face legal fees associated with defending the document. Such a clause seeks to avoid such an outcome.
Conclusion
Though it is important to ensure that your Last Will and Testament accomplishes the goal of directing the distribution of your assets, it is equally important to ensure that you mention in your Last Will and Testament other clauses as your estate planning attorney would recommend. Stivers Law is equipped to help guide your estate planning needs. If you have any questions or need assistance setting up your estate plan, we encourage you to give Stivers Law a call at 305-456-3255.
Justin serves as a member of the American Academy of Estate Planning Attorneys (AAEPA), a national organization comprised of legal professionals concentrating on estate planning. As a member of the Academy, he receives ongoing, comprehensive training on modern estate planning techniques.
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