Sebastian Will Lawyers
Experienced Sebastian wills attorney helping people plan for the day they pass away
Call Lulich & Attorneys in Sebastian to discuss how a will can protect your family and provide protection for your minor children. Our skilled estate planning lawyers advise seniors, parents, and anyone with significant assets. We explain how wills, trusts, and other legal documents can ensure the people testators choose (not people the state of Florida chooses) get the testator’s property when the testator die. Testators are the people who create the will. We advise Sebastian residents about all their estate planning and elder care needs.
Ensuring that a Sebastian will is valid
Florida last wills and testaments must comply with certain requirements so that the Sebastian Probate Court will approve them.
- The testator must be an adult (18 or older) or a minor who is emancipated.
- The testator must be “of sound mind.”
- The testator must sign the will or another person must sign the will – at the testator’s direction (if, for some reason, the testator can’t sign his/her own name).
- The signature of the testator must be witnessed by two people. The signatures by the two witnesses acknowledge either that the testator signed the will himself/herself or that the testator directed someone to sign the will for him/her.
Florida does not validate oral wills (also called nuncupative wills). Wills should be typed. Wills that are written completely in the handwriting of the testator (also called holographic wills) will not be valid. Florida may validate a will that is in the handwriting of the testator – if it is also signed and properly witnessed as above.
A Sebastian wills attorney explains the benefits of a will?
There are several core reasons why people prepare a last will and testament. The common thread among all those reasons is – if you don’t have a will – then the state of Florida decides everything for you. The state of Florida doesn’t know you or your family. They don’t know your spouse or your children. Without a will, Florida decides who gets your property. Florida decides, if a relative steps forward, who handles your estate and raises your children. Seniors prepare wills because of concerns they will die soon. Parents prepare wills because they want to provide financial security for their children and choose the people (other than the other parent) who will raise the children. People with homes or any assets of value prepare wills to ensure their property passes to the people of their choice.
Wills provide the following protections:
- The testator decides who receives your estate property. With a will, you decide which of the following people get your home, jewelry, financial accounts, business, and other assets:
- Your spouse
- Your minor children
- Your adult children
- Aunts, uncles, nephews, and nieces
- Co-workers and partners
If you don’t have a will, Florida’s intestate laws normally divide your property between your spouse and children or your parents.
Testators often divide their property equally among their closest relatives. With a will, you can give one person more or less than other heirs – depending on that person’s financial status. Many Sebastian residents with significant assets want their universities, churches, healthcare organizations, or other nonprofits to have some of their assets. Residents of Sebastian, for example, who want to give some of their bank account assets to an educational institution, can give those funds to the University of Florida or Florida State University, or other schools.
Many testators accumulate unique assets such as jewelry or works of art during their lifetime. A will allows the testator to choose which person will cherish those items the most;
- Wills allow you to pick an executor. The executor is the person you choose to handle the financial aspects of your estate. The executor:
- Identifies all of those assets that pass through your estate – homes, bank accounts, retirement accounts, businesses, cars, and anything of value
- Obtains possession of these assets. Many assets are sold and/or deposited into an estate checking account. Other assets may be retitled in the name of the executor.
- Identifies the bills and expenses. These items include claims by creditors, probate administration expenses, and other costs such as any income or estate taxes that may be due.
- Accounts for all the assets and bills – and pays the amounts that are due
- Obtains approval from the court to distribute the assets to the heirs identified in the will
- Distributes the assets
Executors also probate the will, respond to any claims a will was invalid, and work to resolve any other contested issues.
Testators in Sebastian normally select their spouse or an adult child to be the executor. Testators should select an alternate executor in case both spouses die in a car accident or there’s some other reason the first choice for executor can’t do the job. Testators can also choose an accountant, a bank, or others to be the executor. Corporate executors normally charge a high fee.
- Wills are useful in naming the guardians of your children. Guardians are adults you select to raise your children if you die and the other parent died before you or at the same time. Testators often choose siblings, parents, aunts, and uncles to be the guardian of the minor children. You can also choose friends – such as parents whose children are friends with your children. You should select alternate guardians - and check with all the guardians to confirm they want to raise your child if tragedy strikes. Guardians stand in the place of parents. They provide shelter, food, clothing, love, discipline, and guidance for your minor children.
Wills are also used to transfer interest in your business (if the interest isn’t controlled by a partnership agreement or other documents). The transfer can designate if you want the business to be sold or if you want specific people to own and run the business.
Wills can also create trust agreements to provide for your spouse, children, and other people you care about.
A few practical factors to discuss with your Sebastian wills attorney
An experienced Sebastian wills lawyer will review your financial and personal situations. He’ll discuss your goals. The lawyer will draft the correct documents for your needs. If there is a concern about your testamentary capacity, the lawyer may arrange for an elder care physician to examine you to confirm your mental health. Often, the lawyer keeps the original of your signed will in their safe-deposit box– so it doesn’t get lost.
Sebastian wills lawyers help coordinate your homestead exemption with your will. We explain that you should review your will once a year and whenever there is a change in the family status (such as a new child or a divorce) or when you acquire significant assets such as inheritance or your business becomes viable.
Testators may opt to include a letter or video with their will. While these items don’t change the contents of your will, they can provide personal comfort to the people who love you.
What are living wills, powers of attorneys, and health directives?
Wills become active after you die. Living wills, powers of attorney, and health directives become active while you’re living - either when you prepare them or when you become physically or mentally incapacitated. Powers of attorney documents generally appoint someone to make financial or personal decisions for you while you’re alive. Powers of attorney forms can also appoint someone to make medical decisions for you.
Healthcare directives generally instruct hospitals and healthcare providers what efforts should be taken if your life is at risk, if you have a life-threatening condition, or if you can no longer act for yourself. Living wills are essentially the same as healthcare directives.
If you don’t have these legal documents, then the state of Florida will make decisions about your finances, personal care, and health for you.
How are Sebastian will contests resolved?
Some of your family members and friends may think they should’ve gotten more than your will provides. They may look for ways to challenge the will if they think the intestate lawyers would provide a larger share. Wills can be contested on the following grounds:
- The will wasn’t properly drafted or signed.
- The testator didn’t have testamentary capacity. Testamentary capacity means that the testator:
- Knows what their assets are and what property will be distributed through their will. For example, testators should know where their home is and what financial accounts they have. People with dementia may lack testamentary capacity.
- Know which people would normally inherit their property if there wasn’t a will or would reasonably expect to inherit through your will.
- Know why people use a will and other estate planning documents.
- Executors need to show that the testator met all three criteria. Your Sebastian wills attorney may, as mentioned, have an elder care lawyer evaluate you. He may also show your testamentary capacity by preparing a video of you near or at the time of the signing of the will. The testimony of elder care doctors is usually given a lot of weight.
- The will was prepared through undue influence. An upset relative may challenge the will on the basis that some who had a confidential relationship with the testator pressured the testator to prepare or change a will - and provide that part of the testator’s estate be distributed to the person in the confidential relationship. The person in the confidential relationship should receive more than he/should normally would.
Our skilled Sebastian wills lawyers provide counsel to executors and claimants to show that undue influence was used. Our counsel includes conducting discovery, questioning witnesses, and examining the full circumstances surrounding the will to disprove (or prove) undue influence. For example, if the person in the confidential relationship refused to let other family members see the testator before the will was prepared, this refusal indicates undue influence was used.
The burden of contesting a will is on the person asserting that the will is invalid. In undue influence cases, the person contesting the will must usually prove:
- That the testator had a weakened intellect at the time the will was signed. A weakened intellect is easier to prove than a lack of testamentary capacity.
- The existence of a confidential relationship between the person who benefits from the will (or new will) and the testator
- The person in the confidential relationship received a benefit greater than expected
As an example, if a nurse for the testator receives 1/3 of the estate when she normally would receive nothing, the nurse refused to let family members see the testator, and the testator’s memory was fading – an Indian River County judge might rule that the nurse exercised undue influence regarding a will that the testator made while in his/her care.
It’s important to note that only people who expect to inherit from the will can contest a will on the basis of undue influence – and that’s only if they receive less in the will than was reasonably expected. In the nurse example, if a son would normally have received ½ of the estate and a daughter the other ½ - and the contested will provided that the son would still receive ½ of the estate but the daughter would receive 1/6th of the estate – then only the daughter can file a claim for undue influence. The son can’t contest the will based on the ground of undue influence.
- Fraud. Someone can contest the will on the basis the testator’s signature is a forgery or for other fraudulent reasons.
- There is a new will or a codicil to the current will. Testators often prepare a new will or a codicil (a will modification) if they give birth to a new child or they divorce their spouse. Probate judges in Sebastian will review if the new will or codicil is valid.
What is a pour-over will?
A pour-over will is used along with a trust to avoid having your assets pass through probate. The core idea is that spouses create two documents – a pour-over-will and a trust agreement. Each spouse signs both documents. The documents provide that when the first spouse dies, all of his/her assets that normally would pass through probate pass to the trust where the documents are available for the surviving spouse.
How to avoid having assets pass through a will
Your Sebastian wills attorney can help you avoid probate by:
- Retitling assets
- Providing that assets are payable on death to a named beneficiary
- Creating trust agreements
- Using many other legal arrangements
When should you consider using a codicil to your Sebastian will?
Preparing a codicil is similar to preparing a will. The codicil should reference the existing will. The codicil should be signed in the same manner as the will was signed. Both the will and codicil are presented for probate at the same time.
Codicils are generally used for small changes to a will such a selecting a different beneficiary, specifying how you’d like to be buried, and other small additions. You should consider a codicil if you divorce or remarry, there’s a new family, or you acquire a business or other new assets. Your Sebastian wills attorney will explain when a codicil is the correct choice and when you should prepare a new will.
You should consider a will or codicil if you want to create a trust. For example, if a child or relative has health problems, you might create a trust to ensure the child or relative has the funds they need to pay for the necessary medical care.
When Should You Contact Lulich & Attorneys about a Sebastian will?
Estate planning is for everyone. Regardless of your age or circumstances, if you don’t have a will, you should call Lulich & Attorneys in Sebastian. If you already have a will, keep in mind that you should review and possibly update your estate plan – from time to time.
Life changes. People die and new family members are born. Minor children become adults. Some family members marry and others divorce. Changes like these can be inconsistent with the terms of your will. Also, these life events may make you change your mind about who you want to have your property.
To modify a will, or to revoke a will and replace it with a new one, you have to follow very specific rules and requirements. Lulich & Attorneys provides sound practical advice and skillful assistance in making sure your wishes will be carried out.
Help is Available from Skilled and Knowledgeable Sebastian Estate Planning Attorneys
If you live in Sebastian and do not have a will, or if you moved here from another state or live elsewhere but own property in Florida, call the law offices of Lulich & Attorneys. We want you to be informed and protected! You can reach us in Sebastian at (772) 589-5500 or use our contact form to schedule an appointment.
Lulich & Attorneys Sebastian Office
- Phone: 772-492-4611
- Fax: 772-589-8800
- Address: 1069 Main Street, Sebastian, FL 32958
- Hours: M-F 8:30PM - 5:00PM
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