Dana Carlson Gentry
Florida Board Certified in Wills, Trusts & Estates
People of all ages need a will, because if you do not have one, the state statutes will decide which family members will receive your assets at your death and that decision should be yours
Imagine you are in your late twenties, you have been happily married for five years and you have a home jointly owned. All your other assets are jointly held with your spouse or are payable to each other in the future and you plan in the near future to have (or already have) a child.
I don’t need a will. Only retired people need one of those documents, right? WRONG.
If you do not have a will, the state statutes will govern which family members will receive your assets (spouse, parents, siblings, cousins or others) depending on who is alive at your death. But wouldn’t it be better to make that decision yourself?
Certainly you would want each other to have anything owned individually. Maybe you and your spouse have no children, but you have a favorite charity. If your spouse does not survive you, then other family members would take under Florida’s intestacy law and your favorite charity will get nothing.
If you don’t have a will and your spouse has predeceased you, but you have a minor child, that child will eventually receive your assets. A guardian will have to be appointed, and without a will the child will get what is left at 18 years of age.
You can do two things with the will that makes this whole process easier. Designate who you would prefer to be the guardian of your child, and set up a testamentary trust to postpone outright distribution until a later time, such as 25 years, when the child is perhaps more mature.
Who you choose to be guardian of the person (if your spouse is deceased) until the child attains 18 years of age may be different than who you would choose to be guardian of the property and trustee for financial matters.
Further, a court will most likely not give preference to a family friend that you would like to use as guardian of the person, unless there is written evidence of that preference. As an only child married to another only child, choosing a friend who lived close to my children’s grandparents was an important factor for my husband and me when our children were young.
If you don’t have a will that specifies who you want to be trustee of a continuing trust for your minor child that would properly manage the funds for your child until distribution, then a court would decide who would manage the money until the child reaches 18.
Without the will, your child would get the entire balance outright at 18 (whether or not high school graduation has yet to occur). An 18-year-old, while legally an adult, may not yet be mature enough to handle substantial sums of money. Having a testamentary trust with a responsible older adult or corporate Trustee to manage the money until the child attains the age of 25 may be a more prudent decision.
Wouldn’t you rather make these decisions yourself, and perhaps postpone full distribution to a child until a more mature age than have a court make all these decisions for you?
To learn more about wills, trusts and estate law, please contact call Dana Gentry at 941.748.0100 or email her at dgentry@blalockwalters.com.
