A Florida last will and testament, or “will,” is a formal document wherein a Florida resident directs the disposition of his property (assets) after death. A will is often used to choose the guardian of minor children in the event of a parent’s death and there is no surviving biological or adoptive parent. The choice of guardian is a primary motivation when younger parents make a will. A will is administered through a legal proceeding called “probate.” Probate is designed to pay a decedent’s creditors, and after creditor claims are resolved, to legally transfer title to the decedent’s property to heirs named in the will.
A will designates the person who will act as personal representative (executor) after death. The personal representative acts as decedent’s legal representative and is charged with administering that person’s estate through probate. The personal representative has the right to bring legal claims on behalf of the decedent or defend claims of third parties against the probate estate. A last will and testament in Florida may nominate two or more persons to serve jointly as personal representative.
A personal representative in Florida must be either a Florida resident, or if not a resident, must be the decedent’s spouse, sibling, parent, child, or other close relative of the person making the will.
Requirements for a Valid Will in Florida
To be a valid will in Florida, the will must meet the following requirements:
- It must be in writing.
- It must be signed by the testator (person making the will).
- The testator signature must be at the end of the will.
- The testator must sign the will in the presence of two witnesses.
- The two witnesses must sign the will in the presence of the testator and in the presence of each other.
After a person dies, his heirs must “prove” the will in order to start probate. Proving a will consists of presenting to the court evidence that the will was properly executed. A Florida will can be made “self-proving”. A self-proving will in Florida is one that does not need further authentication before being admitted into probate. The law that allows a will to be self-proving in Florida is section 732.503 of the Florida statutes. To be a self-proving will, the will must be acknowledged by the testator (person who makes the will) and the two witnesses with a notary. It is not strictly required that a will be self-proving to be valid, but it makes it much easier to admit the will to probate once the testator dies.
The formal requirements for a will are strictly enforced. A will that does not comply with the rules of signing and witnessing can be challenged, and the will invalidated. A will should be drafted by an experienced Florida estate planning attorney to ensure that it is properly drafted and executed under the provisions of Florida law. Preparation of a will by someone other than a lawyer may constitute the unauthorized practice of law, and an improperly drafted or executed will may increase probate fees and estate costs.
What Can Someone Do in a Will?
The general Florida rule is that there are no restrictions about the directions someone can write in their will. A person can give what they want, to whom they want, and the way they want after their death. A will can be simple or the directions in a will can be complex and detailed. There are exceptions that can invalidate provisions in a will that make a bequest deemed contrary to public policy such as a bequest conditioned upon race or religious criteria. Also, an attorney preparing a will may not make himself an heir of his client.
Florida Will vs. Trust
Most people today use a living trust instead a will in Florida to express their instructions for the distribution of their property after death. The living trust is a self-settled revocable trust that holds property for the benefit of the trustmaker during their lives and distributes trust property to named beneficiaries after the trustmaker dies. The differences between a will and a trust in Florida include:
- A will must be probated after the testator dies, while a trust is administered without formal court supervision.
- A trust enables the trustmaker to control the timing, manner, and amount of distributions for an extended period after death, while a will typically results in a single distribution through probate.
A trust controls property titled in the name of the trust. The will controls property titled in the individual name of the decedent.
Pour Over Will in Florida
The trust- based estate plan does not affect any assets unless the assets have been conveyed to the trustee of the trust. The process by which the trustmaker transfers his assets to his living trust is called funding the trust.
Often, someone will create a living trust agreement but neglect to convey their individually owned assets to the trustee during their lifetime. After death, the trust owns no assets to administer as the trustmaker directed in the trust agreement
A “pour over” will funds the decedent’s living trust after death. The pour-over will is just like a regular will, but rather than leaving individually titled assets to heirs, the will leaves these assets to the trust. The will appoints the living trust as its heir. The will says that any assets in the decedent’s name (assets that haven’t yet been put in the trust), are poured over to the trust. The living trust agreement controls the ultimate disposition of the property received.
A pour over will administers the decedent’s assets through a probate proceeding; the assets are legally conveyed to the trustee at conclusion of the probate. The best practice is to transfer assets to the living trust before death to avoid the delay and expense of probate of a pour over will.
Buying Free Will Templates
Using a template for a will in Florida is cheaper than hiring an attorney to draft a will. Some will templates are free. Be careful that a free will template complies with Florida law and is not just a generic will template for any state.
The benefits of hiring an attorney to prepare your will include:
- The attorney will suggest which documents are best to implement estate planning.
- The attorney educates the client about optional provisions for a will or trust, and the attorney is available to answer questions.
- The attorney will arrange for a proper signing of the will and related documents including the witnesses and notaries required.
- The attorney can customize the will and accomplish the client’s individual goals and concerns.
What if Someone Dies Without a Will?
If a person dies without a last will and testament, that person is considered to have died intestate. The consequences of dying intestate in Florida are explained in Florida Statute Chapter 732, Part I. The statute dictates how a person’s property is divided among the survivors including a decedent’s spouse, children, and other heirs.
Florida Probate of Last Will
Probate is a legal proceeding that administers the provisions of a decedent’s testamentary last will after the decedent’s death. Probate is designed to pay the decedent’s creditors and to transfer title of the decedent’s property to heirs designated in the will. The general rule is that all assets in the decedents personal name are included in and require probate. Probate is not required for assets that transfer to designated individuals by contract and that are exempt from the decedent’s creditors, such as retirement accounts, life insurance, and tenants by entireties property. Assets that are subject to probate comprise “the probate estate.”
There are important initial steps in probate law. The first step is to identify, value, and assemble the assets which comprise the probate estate. The other initial step is to identify the decedent’s creditors to whom the decedent owed money or who had legal claims against the decedent.
Two Types of Florida Probate
Florida’s probate law and procedures are expressed in the Florida Probate Code in Chapters 731 through 735, Florida Statutes. The Florida Statutes provide two types of probate:
- summary probate
- formal probate
Determining which type of probate to file depends on the amount and nature of property in the decedent owned and the decedent’s date of death.
Florida Summary Probate for a Small Estate
Summary probate is available when the probate estate consists of property whose total value is under $75,000, excluding real property, providing there are no known creditors. Summary probate is also available two years after the decedent’s death regardless of the value of the decedent’s estate assets. Creditor claims expire two years after death.
The summary probate rules and procedures are set forth in Chapter 735 of Florida law. Summary probate can be compared to a small claims case in civil matters. Summary probate does not require the appointment of a personal representative. Summary probate involves preparation and filing of a short summary probate petition accompanied by an affidavit that there are no creditors who could file a claim against the decedent or his estate.
Formal Probate and the Personal Representative
Formal probate is filed when the total estate value exceeds $75,000 or in any size estate that requires the probate court’s action or intervention (such as transfer of real estate, creditor claims, or matters concerning the heirs).
Formal probate is conducted by a person appointed by the court to be the decedent’s personal representative. The personal representative works on behalf of the decedent to administer the probate estate and represent the decedent in any other legal matters. A personal representative must be represented by an attorney in all legal matters before the probate court.
The personal representative’s primary duty is to protect and preserve the probate assets and to see that the assets are invested in a prudent and cautious manner. The personal representative has possession and control of all assets of the estate during a Florida probate.
Florida Statutes has rules about who may serve as personal representative of a Florida probate. Generally, a decedent’s family member, wherever located, or any other Florida resident over the age of 18 may serve as a personal representative. An attorney wherever located may also be a personal representative in a Florida formal probate.
In most cases, the court will appoint as personal representative the person nominated in the decedent’s will. If a will does not nominate a personal representative, or if the nominee is ineligible, unable, or unwilling to serve as personal representative, or if there is no will, the court selects a qualified personal representative.
A person nominated as personal representative may decline appointment. Once appointed, the court may remove a personal representative for cause such as failure to properly conduct the probate proceeding. A party to a probate proceeding may petition the court to remove a personal representative for cause.
Florida law considers the personal representative to be a “fiduciary” (a person in a position of special faith, trust, and reliance). The personal representative has a fiduciary duty toward the decedent’s creditors and heirs and has a duty to properly conduct the probate proceeding. Personal representatives are entitled to a reasonable fee for their service and to be reimbursed for any personal money spent for probate administration such as attorney’s fees, filing fees, and costs. Section 733.617, Florida Statutes states guidelines about reasonable personal representative fees. Section 733.6171 expresses guidelines about reasonable probate attorney’s fees based upon a percentage of the probate estate. Most practicing probate attorneys charge clients less than the statutory attorney’s fees.
Florida Probate Procedure
The formal probate process, referred to as the administration of the probate estate, begins with filing the original will with the court and the preparation and filing of a petition for administration. A probate judge will sign an order admitting the decedent’s will for probate and will issue “letters of administration” appointing the estate’s personal representative.
The attorney for the estate will provide the personal representative certified copies of the letters of administration (which are evidence of the personal representative’s legal authority). The estate’s attorney sends copies of the letters of administration to parties he believes are involved or interested in the probate. Beneficiaries of the estate will be sent copies of a notice of administration by certified mail if they have not previously waived notice.
A primary function of probate is to give the decedent’s creditors the opportunity to be paid from estate assets. Typical creditors in a probate proceeding are the decedent’s mortgage company, funeral expenses, and health care professionals who provided medical care during the decedent’s last illness. The personal representative’s attorney notifies any party the personal representative knows, or has reason to believe, may have a claim against the decedent’s estate. The personal representative’s attorney must also notify potential and unknown creditors by publishing a legal notice in the newspaper.
During the early stages of administration, any creditor having a claim against the decedent is required to file a claim with the probate court. The court will send the personal representative’s attorney a copy of all claims filed. The personal representative should review claims filed to determine whether each claim is valid. The personal representative may object to any claim which he believes is incorrect. Objections are usually resolved by mutual agreement.
If the parties cannot reach agreement, creditor disputes are resolved by the probate judge. Once the personal representative or the court determines the validity of contested creditor claims filed, the personal representative pays the claims (either in total or in a prorated amount).
The personal representative must identify, assemble, and secure probate estate assets. A personal representative should compile a list of assets as soon as possible after their appointment. The personal representative should maintain adequate insurance coverage of tangible personal property or improved real property. A list of all assets in the probate estate and their values must be filed with the court in the form of a probate inventory.
Another part of the estate proceedings is determining whether the estate is required to file federal tax returns. Personal representatives will likely file an income tax return for the decedent for the tax year of his death and for each year during probate if the estate has more than $600 in income during the tax year. Some probate estates also file an estate tax return for estate tax planning purposes or if the total taxable estate exceeds the applicable estate tax credit.
Just because the law requires that a tax return be filed does not necessarily mean that tax is due. The personal representative must retain sufficient funds to pay any taxes which may be due as the probate closes. The law permits the IRS, and in some situations the State of Florida, to collect unpaid taxes from the personal representative’s personal assets.
After payment of claims and resolution of any disputes, the personal representative distributes any remaining probate assets to the heirs named in the will. First, the personal representative distributes estate assets to satisfy any specific bequests in the will. A specific bequest is an instruction in the will to distribute a specific asset, such as real estate, or a fixed amount of cash, to one or more persons or a charity.
Often, estate beneficiaries will ask the personal representative to prematurely distribute assets of the estate. The personal representative may be held individually responsible for early distributions when the personal representative later learns that the money distributed is needed to pay estate expenses, federal taxes, or for required distributions. The personal representative should never distribute money to an heir without first contacting their attorney.
Closing the probate administration requires a formal accounting. The accounting includes all legally significant activities during probate administration, evidence that creditors’ claims and taxes have been paid, and a statement that the remaining estate property has been distributed in proper shares to the persons entitled under the decedent’s will. The proposed accounting is distributed to all beneficiaries who then have an opportunity to object.
Alternatively, the formal accounting may be waived by unanimous consent of the beneficiaries. Beneficiaries waive a formal accounting in most estates because the accounting can be expensive. The personal representative’s attorney files the formal accounting or accounting waivers with the probate court. The court reviews the accounting and other legal forms involved in closing the estate, and if all forms are in order, the judge will sign an order discharging the personal representative. This order effectively closes the probate case.
Last updated on May 2, 2021