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Secure Your Legacy: The Importance of Having a Last Will and Testament

Selecting the right individual(s) or entity to settle the affairs of the decedent is fundamental to the successful settlement of an estate.

  • By Lorenzo Fernandez | Trusts and Estates Attorney, Williams Parker
  • | 4:01 p.m. July 25, 2024
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The Last Will & Testament (the “Will”) is a foundational piece of any estate plan. The purpose of the Will is to nominate a personal representative and dispose of certain property held in an individual’s sole name. The Will does not dispose of property passing by operation of law (e.g., joint ownership with rights of survivorship or beneficiary designations) or held in an alternative form of ownership such as trust.

The main benefit of a Will is the ability to decide who will inherit the assets of the estate. The Florida Legislature has created a default estate plan for decedents who die without a Will (“intestate”). Florida law generally prioritizes the surviving spouse and direct lineal descendants as the default beneficiaries, which may be consistent with a decedent’s intent. However, non-traditional family relationships such as mixed families, decedents without lineal descendants, or domestic partnerships may frustrate the decedent’s intent. In the extreme case of no surviving relatives, assets may escheat to the state. Note however, the ability to freely devise property may be restricted by other statutory entitlements such as a spouse’s right to an elective share of the estate.

The ability to control how and when beneficiaries receive their inheritance can be essential to wealth preservation. As a common example, the Will can create continuing trusts for beneficiaries, which can dictate the timing and size of distributions. Without a Will, assets passing by intestate succession will generally be distributed outright and can be expended at the beneficiary’s absolute discretion. There are many creative planning opportunities to promote responsibility and protect your legacy.

Selecting the right individual(s) or entity to settle the affairs of the decedent is fundamental to the successful settlement of an estate. In Florida, the Personal Representative (“PR”) is appointed by the court to act on behalf of the estate. The PR has a fiduciary duty to collect, preserve, and distribute assets of the estate. Florida statutes provide a hierarchy of individuals entitled to serve as a PR. Courts will prioritize a PR nominated in the Will—provided they also meet other statutory requirements. For an intestate estate, the surviving spouse or in certain situations, heirs of the decedent, may serve as the PR. The Will allows clients to nominate those most qualified to serve as PR of the estate.

Lorenzo Fernandez is an attorney focusing on estate planning and administration. If you have any questions or need assistance, please feel free to contact Lorenzo at (941) 231-1204 or [email protected].

Phone: 941.366.4800 | Website: www.WilliamsParker.com