Your Last Will and Testament: Don’t Die Without One!

Last Will and Testament

Have you ever thought about how you will die? As morbid as that sounds, we all know that it is not if but when. It could be sudden like a car accident or maybe something more long-term like cancer. Listen, we get it, death is a topic that is uncomfortable to talk about. But taking the time to put things in place now, while you are alive, will set up all of the survivors to be taken care of in the wake of your death. No matter how young or healthy you are, you need a Last Will and Testament in place.

“If you fail to plan, then you are planning to fail” – Ben Franklin

The best possible scenario for everyone involved is that you have an estate planning document, like a Last Will and Testament, in place when you pass away. Planning ahead for the inevitable not only legally protects your loved ones but also guarantees that you leave your property to who you want. Having everything in writing before you die ensures that there are no questions about your wishes regarding your estate which, in turn, relieves pressure from your family during an already stressful time. With the help of a lawyer (preferably one who focuses their practice in probate), having a Last Will and Testament prepared is fairly simple and can save your survivors time and money after your passing. 

There are a few considerations to your Last Will and Testament to keep in mind. Last Will and Testaments are still subject to probate; conversely, a properly funded trust will avoid probate altogether. Additionally, a Last Will and Testament allows for you to disinherit a child; however, you cannot disinherit your spouse without a validly executed pre-nuptial or post-nuptial agreement and your spouses’ consent. Florida protects legal spouses with the elective share which means, at minimum, spouses are entitled to 50% of the probate estate or 30% of everything (probate and non-probate assets) you owned at the time of your death. 

Clearly there are many beneficial impacts of having a Last Will and Testament.  But what happens if you never get around to completing it? Every state has intestacy laws which provide the distribution of your property when you die without a Last Will and Testament.  These laws describe who inherits and what percentage each person receives. 

The following are examples to illustrate the complexities of what happens if, for instance, a (1) Florida man (2) dies without a Last Will and Testament (intestate) and (3) leaves all of his property in his individual name:

  • What if he was married? – The surviving spouse gets 100% of his estate. That said, if he has children from another relationship (which is about 80% of second marriages), the surviving spouse gets 50% and the other 50% goes to his children. 
  • What if he and his partner were not married? – This begs a few additional questions in order to be answered. 
    • Are there surviving children? 
      • Yes – Then equally to his descendants.  Nothing to his partner 
      • No – 
        • Then equally to the man’s mother and father or to the survivor of them. 
        • If both parents are deceased, then to the decedent’s brothers and sisters and the descendants of deceased brothers and sisters. 
      • Unfortunately this has the effect of disinheriting a non-married partner, making it especially important to have a Last Will and Testament to ensure a partner inherits from another partner’s estate. 
  • What if there are half-siblings?When property descends to collateral kindred of the intestate and part of the collateral kindred are of the whole blood to the intestate and the other part of the half-blood, those of the half-blood shall inherit only half as much as those of the whole blood; but if all are of the half-blood they shall have whole parts.” Sound a bit like Harry Potter? We thought so too. Here’s a translation — Half siblings only get half as much as whole siblings, unless all of the siblings are half-siblings and then they all get the same amount. 
  • What if there are no living brothers, sisters, or descendants of brothers or sisters? The estate shall be equally divided with 50% going to the maternal kindred and 50% going to the paternal kindred as follows:
    • To the grandfather and grandmother equally or to the survivor of them. 
    •  If there are no living grandparents, then  to aunts and uncles (or their children who are decedent’s cousins) 
    • If there is either no paternal kindred or no maternal kindred, the entire estate shall go to the kindred that survives in the order stated above. 
  • Ok, but what if there is NO surviving kindred? If there is no surviving family then the estate will go to the kindred(family) of the last deceased spouse of the descendent as if the deceased spouse had survived the decedent and then died intestate entitled to the estate.  (Before you panic, this does not mean a previous spouse the man divorced, just deceased.)
  • What if there is STILL NO ONE?  The man’s estate will escheat  (be given) to the State of Florida 
    • The state takes your property and sells it. The profits will then be deposited in the State School Fund. At any time, within 10 years, someone claiming to be entitled to the proceeds of the property can reopen the administration of the estate and assert entitlement.  
    • If no claim is made in 10 years, the state’s right to the proceeds shall be absolute.

As you can see, it can get a little sticky trying to figure out who gets what. Without a Last Will and Testament, there are so many unanswered questions that can sometimes lead to rifts in families upon the division of the estate. It is easy to see that having a Last Will and Testament signed before you pass makes an already hard time a little bit easier for all of those who survive you. The professionals at McCart & Tesmer have a focused practice in Estate Planning and Probate so if you are ready to begin your Last Will and Testament, schedule your appointment with us. 

Divorced Parents Guide to Summertime Co-Parenting in 2021

The 2020-2021 school year is just about over, and just like that summertime is upon us! Without school days to break up visitation time, divorced or unmarried parents everywhere are posed with unique challenges of co-parenting outside of the school schedule. 

Before exploring ways to help the parents, it is vital to keep the child(ren)’s perspective and experience in mind. Without a doubt, summertime is usually a few months of fun and magic for children and the children’s experience should be a large part of the decision-making process. This will allow the children to create amazing memories and mitigate any potential disputes. 

Now for the parents! The following is a one-stop-shop and list of considerations to help facilitate a less stressful, more meaningful summer while co-parenting. 

For Best Results –

  • Create a Parenting Plan – A Parenting Plan can be very useful to delineate custody, child care, and visitation or time-sharing  in writing. This document can be as detailed as necessary and can help take some of the guesswork out of co-parenting in the long term. Click here for a free Parenting Plan template. If you already have a parenting plan in place make sure you follow it and are flexible when changes are necessary. 
  • Keep Rules and expectations consistent – This consideration can be tough if the parents are not able to communicate well but it’s also one of the most vital considerations in co-parenting. Especially outside of the structure of the school setting, it is very important to have similar rules and mindsets regarding the rules to be followed over the summer vacation. 
  • Plan ahead for summer camps and vacations- There are likely summertime activities such as camp and vacation that will keep you and your kiddos very busy. These activities could create bumps in the road if both parents are not on board to work together to keep the summer as fun as possible for the child or children. Providing advance dates and schedules help. Do not forget to be flexible where you can, keep in mind that the earlier you start planning your summer the more flexible you can be. Perhaps a joint meeting in April or May to come up with ways to manage work, travel and activity schedules will benefit both parents and ultimately the children. 
  • Plan for Parents to have a life – Similarly, the parents may have schedules to work around in addition to the children.  What if one of the parents wants to sail away to Hawaii for a portion of the summer sans kids? Or what if one of the parents has a date? Some amount of communication, preparation, and consideration must be taken to ensure success for both parents to carry on with their lives.
  • Equal time-sharing for family events – Events like graduations, weddings, and family reunions double when parents do not reside together.  Anticipating that these events will occur sets the expectation for flexibility and cooperation.  Each parent should extend the courtesy of communication and flexibility to the other parent. 
  • Consider and agree upon childcare – Most of the time childcare is necessary as typically both parents work. It must be agreed upon who will pay for childcare as well as who will be responsible for drop off and pick up? Can the parents work together if one parent isn’t available for either?

Now that we’ve laid out considerations, how in the world are two separate households supposed to keep everything straight? That is a great question and luckily in 2021, there are many applications and resources available to divorced parents to communicate regarding time-sharing and exchanges. Apps that include features such as expense logs, shared calendars, and even messaging can smooth out some prickly moments that two household families can experience. Two applications that many families ulitize with success are: 

OurFamilyWizard –

COST – $99/year per parent (with optional add-on’s)

OurFamilyWizard was created by a divorced couple who understood there was a need for a tool to help the process of divorce and custody as smoothly as possible. The application allows each parent to have their own account and then they can add in other users such as therapists, lawyers, and extended family. Here are some of the best features:

  • Shared Calendar – This easy-to-use calendar allows both parents the ability to trade and swap with one touch. Parents can send schedule alterations for the other parent to accept or reject. Everything is documented automatically and stored for future use (if necessary).
  • Expense Log – You can save your credit card in the application and track expenses between parents for ease of reimbursement. This feature creates a seamless and secure line of communication between parents regarding expenses. 
  • ToneMeter – This feature is an added cost but comes in very handy if the parents have a tough time with communication. ToneMeter is kind of like a spellcheck, but instead of detecting misspelled words, it detects negative tones in your message. It then offers a more neutral alternative message that could avoid an argument. 
  • Instant Messaging – The instant messaging function allows for parties to communicate easily through the app, rather than using phone numbers or emails. All messages are permanent, uneditable, and archived. 
  • Event Chronicle – This ongoing journal feature gives a timeline chronicle of events such as doctor’s appointments, school events, communication with family members, court dates, etcetera. Journals are, again, uneditable and permanently housed on the ap.

Talking Parents –  

COST – *Free or up to $60/year per parent with Premium features

Talking Parents is one of the most popular apps out there for co-parenting for a few reasons. While much of the functionality is similar to OurFamilyWizard, there is a *free desktop version of Talking Parents that makes this option more attractive. With a la carte “premium” add-on’s if you want to use features such as the mobile app and download PDFs of conversations and calendars. The most valuable features are: 

  • Secure Messaging – The simple messaging feature resembles the text messaging on your phone. You get the sent and received time-stamp for each message and you can upload files to messages. All messages are permanently stored and are uneditable.
  • Realtime notifications – When one parent posts a message or sends a schedule approval, the other parent receives a push notification. This makes it simple to stay on top of any changes happening.
  • Share and store files – Kind of like Google Docs, this searchable feature makes it easy to not only save important images and documents but also share them within the application. You can see who the files have been shared with as well.
  • Printable PDFs – Easily download and/or print files from the application for use in mediation and custody meetings. You can export all conversations, journal entries, and documents.

For further questions regarding parenting plans, summer time-sharing, or holiday exchanges, please contact us at McCart & Tesmer, P.A.