The basis for any good Estate Plan is a strong Last Will & Testament.Estate Planning is the process of creating a legally binding plan for what will happen to a person’s assets (i.e., personal & real property) usually known as one’s estate after a person passes away. While Estate Planning can take many forms, a Last Will & Testament or Last Will allows one to dictate how and to whom their estate and/or assets will be distributed after paying appropriate expenses in an organized and streamlined fashion.

In a marriage, many things are done together, i.e., bank accounts get combined or are joint, vacations and other activities are done together, etc. It is technically possible to do one’s Estate Planning together as well. In Florida, a married couple can create a “Mutual Will or Agreement” mirroring the exact same wishes to their own individual Last Wills. HOWEVER, this is not the best idea or way to do things.

Specifically, Florida does not recognize Joint Wills. As a result, a married couple must create two separate Last Wills. This situation limits a married couple’s ability to ensure that their spouse would not change or revoke their Last Will upon their death. Many married individuals fear that their spouse will alter their Last Will and Testament following the death of their spouse. In most Last Wills, married couples agree to transfer all their assets and property to the surviving spouse when they pass away. However, when one spouse dies, the other spouse can freely change the beneficiaries in their own Last Will or otherwise deviate from the agreed upon plan. Joint Wills are used to prevent the surviving spouse from altering their Last Will upon the death of the first spouse. Consequently, since Joint Wills are not valid in Florida, married couples can create a Mutual Will Agreement.

A Mutual Will Agreement (MWA) is different from a Joint Will. Unlike Joint Wills, an MWA is a valid and enforceable contract in Florida under Fla. Stat. § 732.701. Essentially, an MWA is a contract between two spouses that outlines the contents of their Last Wills. This agreement can also be used to prevent spouses from changing their own Last Wills upon the death of the spouse who dies first.

To be valid, a Mutual Will Agreement must be signed by both spouses in the presence of two witnesses. Married couples can benefit from entering into this agreement to eliminate the risk that the surviving spouse might change their Will upon the other spouse’s death.

In the absence of a Mutual Will Agreement preventing them from changing or revoking the Last Will, the Testator, who is the person who created the Last Will and Testament, has a right to amend or revoke their Last Will any time before their death.

As previously mentioned, an Estate Plan is something very personal to an individual. It is made to explain a person’s wishes for the future, so it should reflect the specific intent of that individual. While many things are shared in a marriage, a Last Will, especially as it relates to a person’s assets, their extended family, and personal belongings, should be tailored exclusively to said individual.

There are also logistical concerns to consider. If one spouse passes away before the other, which tends to be the case, the Last Will could becomelocked. The living spouse might be unable to make any changes to it for the rest of their lifetime. What is more, the distribution of assets would beginwhile one spouse was still alive, which can be awkward or emotionally difficult. This is one of the main reasons why every adult should have their own individual Last Will & Testament.

If a person has any children from an earlier relationship, that would be even a greater reason to create their own Last Will. Blended families should be protected with individualized and customized Estate Plans since they may not be recognized in probate court without one.

The parties may even go as far as to include a “non-mutual” clause in their own individual Last Will & Testament. If used, then the “non-mutual” clause should expressly state that the surviving spouse can change or revoke their own Last Will despite any interest received. This additional expression of intent will show that one’s specific wishes are their own and should not be copied onto or from their spouse’s. Married individuals can include the foregoing language in their respective Last Wills.

If you have additional questions or would like to discuss your legal issues, including Estate Planning, please contact an attorney with CASERTA & SPIRITI at your earliest convenience. As the old saying goes-there is no better time to start than the present! 

When an estate is subject to probate, the entire process can get more difficult than expected. Heirs and beneficiaries can have disputes, and the process can become public, so people can minimize what assets are actually probated, if any.

Trusts can avoid probate but can also be problematic since they must be administered.

Certain steps can be taken to avoid probate through designation of beneficiaries or some type of joint ownership, which transfers ownership from a deceased party to the living through other means.

Bank accounts usually have two ways to avoid probate: joint ownership (by the entireties-Husband & Wife or with right of survivorship) or designated beneficiaries (or In Trust For, Transfer on Death, Payable on death, etc.). If a person owns a bank account jointly with another person when they pass away, the other person will assume ownership of the account. The same applies if a person owns account but has a beneficiary designation through their financial institution. The foregoing can often be referred to as “payable or transfer on death.” However, if an individual customer designates a beneficiary who is no longer able to assume ownership of the account due to either death or incapacity then the said account may be subject to probate or a legal guardianship.

The same rules of bank accounts apply to insurance policy benefits. Any applicable benefits of medical or life insurance policies will transfer without being subject to probate so long as beneficiaries have been properly designated.

Like bank accounts and insurance policies, an individual’s financial investment accounts can have a beneficiary designation as well.

Further, an important aspect of estate planning those individuals or clients need to understand is that accounts which have a beneficiary designation will generally supersede any language written in a Last Will & Testament. If a person has a beneficiary designation for an IRA through the account/institution itself, any bequest or distribution in one’s Will for the same account will be considered invalid.

The right to survivorship prevents a home (homestead or primary residence) and other properties from being subject to probate if there is a surviving spouse at the time the estate is executed. The previously mentioned means one’s home will remain in one’s spouse’s name without having to go through probate.

If property or assets do not specify the proper ownership language, then it is possible that the deceased party’s portion of the property may be subject to probate. In that case, a co-owner or spouse keeps their part or interest of the property, but the deceased’s portion may need to be probated and end up in the hands of another party.

If one’s spouse predeceases them and the survivor never remarries, then the entire property may be subject to probate unless it is transferred or distributed through a trust or other vehicle or designation.

As for real property, if a married couple wants to transfer the said real estate without need of probate to, for example, their children, the Remaindermen, a Lady bird deed may be the appropriate vehicle to convey the property after the death of the last spouse. A lady bird deed in Florida is a legal form that transfers property upon death inexpensively and without probate. A lady bird deed allows the current property owner to use and control the property during the owner’s lifetime, while the property automatically transfers upon death to designated beneficiaries/Remaindermen. The document or instrument is somewhat like a designation of beneficiary on real property.

It would merit speaking with an experienced estate planning attorney to review applicable documents to ensure a person takes advantage of these alternate methods of avoiding probate.

If you have any additional Questions regarding the foregoing or have any legal issue or concern, please contact the law firm of CASERTA & SPIRITI, in Miami Lakes, Florida.