Peace of Mind with a Will
By: Attorney Jennifer Santangelo
During this time of uncertainty, we think of all the things we have been meaning to do and just never got around to doing. Among them, finalizing our estate plans. This is especially challenging now that social distancing is the norm. However, there are several steps we can take to secure our assets and have peace of mind.
First, it’s important to understand that your Last Will and Testament only controls assets that are left in your individual name after death. Assets held jointly in title with a surviving co-owner under joint tenancy or tenancy by the entirety, pass to that co- owner automatically. Also, any asset that has a beneficiary designation legally belongs to that beneficiary upon your death. For example, insurance policies, annuities, 401(K) or other retirement accounts all should have a beneficiary designation. However, your bank accounts can have beneficiaries designated as well. This includes your checking and savings accounts, even Certificates of Deposits can have a payable-on death designation. Fortunately, we are still able to make these designations directly with our financial institutions.
Your remaining assets might include real estate that is titled in your individual name. Your Will would control this type of asset and any other asset that does not otherwise pass automatically to a designated beneficiary or co-owner. If someone with these assets passes away, the process to transfer the asset is the same with or without a Will. A court process called probate would be necessary to transfer these assets to your heirs and/or beneficiaries. If you have a Will, then the court in that probate proceeding knows exactly where to distribute the assets. If you do not have a Will, the court determines who receives the assets based upon the Florida Intestacy Laws. Many worry that their property will end up with the State if you don’t have a Will. However, this rarely happens as the statutes cover even remote relatives.
Your Will is important to designate exactly who you wish to receive your assets. Sometimes your wishes coincide with the Intestacy Laws. When they do not, it is imperative to have a valid Will in place. In Florida, a valid Will requires that you sign the Will in the presence of at least two witnesses, each of whom must also sign. While there is no requirement that the Will itself be notarized to be valid, a notary is required for the “Self-Proving Affidavit” that accompanies the Will. This affidavit is signed by the witnesses and eliminates the need for the witnesses to personally appear in probate court to validate the Will after death. Without the Self-Proving Affidavit, additional steps would be necessary at the time the Will is Probated.
Beginning July 1, 2020, Florida Law will allow for remote online notarization of “Electronic Wills.” Until such time, if notarization is unavailable, you can execute your Will without the optional “Self-Proving Affidavit.” During the pandemic and before July 1, 2020, we can get a Last Will and Testament signed and either wait until July 1 for the online notarization to be allowed to complete the Self Proving Affidavit, or get the witnesses in a room at a later date in front of a notary when the pandemic is not an issue.
Glantzlaw is here for our members during these trying times. Be safe and do not hesitate to call us with all your legal needs.