Florida Last Will and Testament
What Is a Last Will and Testament?
A will is the document you create that outlines how, when, and to whom you want your assets and property to be distributed upon your death. Wills vary in complexity and length. It’s important to note that you should not try to artificially limit their page count. In doing so, you let the length of the document attenuate what you might be able to accomplish legally.
Importantly, a Florida last will and testament also designates a personal representative who will be responsible for distributing your assets and administering your estate.
For young parents and couples, a will can also be used to appoint a guardian for their minor children and a trustee to manage the children’s money until they are old enough to handle it themselves.
Common Misconceptions about Wills in Florida
First, there are certain types of wills that may be deemed not legally sound in Florida or will more likely than not fail to hold up in the probate process. These wills include:
- Oral wills. These are often spoken, rather than written, used when there is not time to draft a written will, or the testator (“will-maker”) is not physically capable of doing so.
- Holographic wills. Informal and often hastily handwritten documents. Individuals tend to resort to handwritten wills when there is an unexpected tragedy that requires them to act in haste.
- DIY wills. Whether free internet forms or “LegalZoom” templates, these wills often use a fill-in-the-blank, one-size-fits-all format. Do it yourself wills can be legal, but often won’t address your unique situation and can contain provisions that make them ineffective or unenforceable.
Moreover, even a properly drafted last will and testament in Florida cannot do everything—there are certain limitations.
- There is no such thing as a “simple will.” Drafting a will involves codifying difficult decisions about sensitive topics into a legally binding document. Even smaller estates can have legal complexities foreseeable only by an experienced estate planning attorney, who can avoid the innumerable legal pitfalls and advise the course best suited for your individual situation.
- Writing on an executed will doesn’t change it. A will’s terms cannot be changed by writing something in or crossing something out after the will is executed. In fact, writing on the will after its execution could invalidate the will altogether.
- Getting married doesn’t nullify a previous will. A spouse acquired after the execution of your will may receive the intestate portion of your estate (i.e. the same as if you had died without a will).
- You may not disinherit your spouse in a will. Without a properly executed nuptial agreement, the law gives a surviving spouse the choice to take either the share provided in the will or the portion determined under Florida’s “elective share” statute.
- You can’t leave your pet money or property. Naming a pet as a beneficiary of a will can be dangerous because pets are not permitted to inherit property. Moreover, the time it takes for your will to go through the probate process may disrupt the care your pet needs.
Preparing Legally Sound Wills
In order to ensure your will is legally sound, you must follow all prescribed laws regarding drafting and execution of the document. In Florida, the requirements are:
- The testator (i.e. the maker of the will) must be at least 18 years old,
- The testator must be of sound mind at the time they sign they will and free from coercion, duress, or undue influence,
- The will must be written (preferably not handwritten),
- The will must be witnessed by two individuals and notarized in the special manner provided by law for wills.
It is necessary to follow exactly the formalities required by Florida law for the execution of a will so that your will can be proved valid in and allowed by the probate court.
Pro Tip: On January 1, 2020, Florida’s Electronic Will Law went into effect allowing the creation of legally binding wills that are signed, witnessed, and notarized entirely online. Some uncertainties still exist, so an attorney should be consulted before moving forward with an Electronic Will. Learn more.
Updating Your Will
Of course, your familial, financial, or life circumstances may change after you’ve executed your will. A will and your other basic estate planning documents should be reviewed regularly and revised as needed to ensure they still reflect your wishes.
Depending on the scope of the changes to be made, you can opt to draft an entirely new will or update the existing will with a “codicil,” a written addendum or amendment that is executed with the same formalities as the original will. Remember, you should not try to change or update the terms of the will be writing something in or crossing something out after the will is executed. Doing this could render the entire will invalid.
Do I Need a Will?
We believe that it is in every person’s best interest to have a properly prepared and executed will. Having a will isn’t about whether you are wealthy or not, whether you have sizeable assets to distribute—it’s about whether you want to exercise control in the disposition of your possessions and whether you want to impose additional burdens on your family after you have passed away.
Of course, the larger the estate the greater the need for planning becomes to avoid the array of complex tax and probate administration issues.
What Happens If I Die without a Will?
If you die without leaving a will, you risk your property and assets being distributed in ways you did not want. The reason for this is that when you die without a will, you are deemed “intestate” (from Latin in + testamentum “not having a will”) and the intestacy laws of Florida govern how, when, and to whom your assets and property will be distributed.
The first step is for the probate court to appoint a personal representative to oversee the administration of your estate since, without a will, you would not have designated one.
Eventually, after any creditors have been paid, the remaining property will be distributed to your heirs and beneficiaries. Unfortunately, this distribution is also done according to the order of priority in the Probate Code, not your wishes.
Florida’s intestacy statute lists which members of your family receive what and in what order. Everything rests upon blood relations, so longtime friends or caretakers will not receive any of your estate.
Even if you had planned to leave your entire estate to your legal heirs or next of kin, there is no advantage to dying without a will. For example, you lose the opportunity to designate a personal representative, trustee, guardian for minor children, and to do valuable tax planning. Without taking such steps, you could force your family to undergo a protracted, expensive, and public probate process before receiving your assets.
With a well-drafted will you can avoid legal pitfalls, name a personal representative of your estate, name a guardian for your children, establish trusts, and minimize probate-related costs by providing for independent administration. Dying without a will may cause unexpected costs and delays and undesired results for the decedent’s family.
We Are Here to Help
We know that thinking about end-of-life planning can be uncomfortable for many people. But proactive planning is critical to ensuring that your financial legacy is secure and that your family and assets are protected. That’s why we work hard to educate our clients and provide clear compassionate counsel to families on all their estate planning needs. We can help take the fear and frustration out of the process. Call us today at (561)998-2362 or book your free Financial Legacy Review now.