Many persons feel that a will is an unnecessary expense, especially for a person whose estate is not expected to be large. However, it is often extreemly important for a person with a relatively small estate to make use of available estate planning techniques because a failure to plean effectively could waste the limited assets available. Conversely, in the case of a larger estate, the benefits of proper estate planning are magnified by the asset value of the estate.
In Florida, when a person dies without a will, the laws of descent and distribution determine who will recieve the assets of teh estate and how those assets will be handed out (See, Florida Statutes § § 732.101 - 732.111). The property distribution organized by those laws may be very different from that intended by an individual or his/her family. Regardless of the size of the estate, an individual must execute a will to pass property to his or her spouse, children, and relatives in proportions different from those specified by statute, or to persons or entities outside the law of discent and distribution. For example, a custom will is necessary to leave all or part of an estate to a charitable organization.
Another important function of a will is the appointment of fiduciaries, which in Florida are: personal representative (also known as executors), trustees, and guardians. To guarantee the appointment of a fiduciary who is acceptable to an individual/family, the individual/family must execute a will stating who they wish to serve and in which capacity. If an individual has not made a will a court of competent jurisdiction will appoint an individual to act as the fiduciary. This appointed person can be anyone, including a creditor of the estate.
When minor children are involved a will may nominate a guardian to take care of the minor. This also applies to individuals who are dependent on the person/family making the will (also known as the testator) for any reason (example - grandmother who has dementia). The court will usually accept the guardian selection as long as the individual named as guardian has the capability to take care of the minor or otherwise incapacitated individual.
Many persons are not aware that a will is capable of creating a trust. This form of trust is known as a testamentary trust and may be the best method of handling some or even all of an individual's estate, even if it may be a small estate. In addition to tax advantages, a testamentary trust can be created to provide for any beneficiary, whether a charity, individual, or multiple persons. Testamentary trusts allow the person creating the will to precisely direct how the trust assets will be used and to whom the assets will flow. Ultimately, there is a lot more control when a testamentary trust is used than when a will lacks such a trust.