A Florida last will and testament is a formal document where you express your wishes and desires concerning the disposition of your property (assets) after death. You can give property to whomever you want and for whatever purpose you desire upon your death with few exceptions.
A will is also used to designate the person who will act as your personal representative (executor) after your death. The personal representative is the individual who acts as decedent’s legal representative and is charged with administering that person’s estate.
A last will and testament in Florida may nominate two or more persons to serve jointly as personal representative. 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 will is often used to choose the guardian of your minor children in the event you die and there is no other surviving biological or adoptive parent of the child. The choice of guardian is often the primary motivation when younger couples make a 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.
- The 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.
Your 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 be the unauthorized practice of law, and an improperly drafted or executed will may increase probate fees and estate costs.
If you die without a will, you are said to have died “intestate.” In other words, you have left no direction regarding the recipients of your property or the appointment of your legal representative. The consequences of dying intestate in Florida are determined by 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.
Trust vs. Will in Florida
The are two key differences between a trust and a will in Florida:
- A will must be probated after the testator dies, while a trust is administered without formal court supervision.
- A trust allows you to control the timing, manner, and amount of distributions long after your death, while a will typically results in a single distribution through probate.
A trust does not take the place of a will—it complements it. When you execute a living trust that outlines what happens to your property after your death, your last will and testament will then leave everything to that same trust.
During your lifetime, you may transfer assets to the trust. But your will takes care of any assets that you did not transfer to the trust before your death. The will gives the property to the trust, and then the property is given to your beneficiaries according to the terms of that trust.
Most people do not need a trust and would do fine with just a will. However, here are a few reasons why you may want to consider a trust:
- You have minor children. Without a trust, upon reaching eighteen, the children will have full control over whatever assets are left to them by will.
- You want to protect the assets from the creditors of the beneficiaries.
- You don’t want the assets to be given to the beneficiary all at once—instead, you want the assets to be given out over time.
- You are unsure if the beneficiaries will be responsible enough to handle the money given to them.
Self-Proving Will in Florida
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 must easier to admit the will to probate once the testator dies.
Self-proving wills is why the testator and the witnesses usually end up signing the will twice.
What happens if you die without a will?
In Florida, if you die without a last will and testament, you are considered to have died intestate. Your assets at the time of death (called “your estate”) will be distributed pursuant to Florida intestate laws.
Generally speaking, your assets will distribute to your closest family members according to a predetermined priority list. If you have no living family at all, then your assets may end up going to the state of Florida.
Pour Over Will in Florida
A pour-over will in Florida is the legal document used to transfer your assets to your living trust at your death. The pour-over will goes hand in hand with a revocable living trust.
Individuals with a living trust set out their desires for who will inherit their property in a living trust document. However, the trust document only applies to assets that are actually owned by the trust. The trust doesn’t work unless the assets are put into the trust.
The process by which assets are transferred to the trust is called funding. Without funding, the trust would remain just a stack of paper—it wouldn’t do anything.
Unfortunately, sometimes people spend a lot of money on a trust, but then fail to actually transfer any assets to the trust.
A pour-over will solves this problem.
The pour-over will is just like a regular will, but rather than leaving assets to individuals, it leaves assets to the trust. In other words, the pour-over will says that any assets remaining in the deceased persons (assets that haven’t yet been put in the trust), should be given to the trust. Once given to the trust, the trust document would control the ultimate disposition of the property.
A pour-over will is a fall-back. It is better to transfer assets to the trust during your lifetime. Assets transferred to the living trust via a pour-over will still have to be probated, which eliminates one of the primary benefits of having a living trust in the first place.
Can you use a free will template in Florida?
Using a template for a will in Florida is usually cheaper than hiring an attorney to draft your will. Be wary of templates that are free, however: you risk the language not being updated or valid. You should also be careful to make sure the will complies with Florida law and that it is not just a generic will template for any state.
The benefits of hiring an attorney to prepare your will include:
- The attorney will advise you as to which documents are needed for your overall estate planning.
- The attorney can go over what your options are when drafting your will and answer any questions you have.
- The attorney will arrange for you to execute the will and related documents in his office, providing all witnesses and notaries required.
- The attorney can help you customize the will to meet your specific needs.
One decision you will have to make when writing your last will and testament in Florida is who should be the personal representative. The personal representative, or executor, of your estate is the person responsible for admitting the will to probate and in general making sure your assets go where they are supposed to.
To be a personal representative in Florida, a person must be either a Florida resident or be a spouse, sibling, parent, child, or other close relative of the person making the will.
A family member serving as personal representative does not need to live in Florida.
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