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Will
By definition under Florida law, a Will is a written document signed by
the testator (the person making the Will) and witnessed by two competent
people. The testator must have testamentary intent. That is, the testator
must intend to dispose of all of his property, real, personal or otherwise
in the Will. The testator must be competent. The witnesses acknowledging
the Will must be present at the time the Will is signed by the testator
and must be present for each other to sign as well.
- Requirements for Florida Will
- You, the maker of the Will (called the Testator), must be at
least 18 years old.
- You must be of sound mind at the time you sign your Will.
- Your Will must be written.
- Your Will must be witnessed by two witnesses who sign as
witnesses after you sign the Will.
- To be effective, your Will must be proved in and allowed by the
probate court.
A Will from any other state that is valid in that state will
also be valid in Florida. Any Will created in a foreign country
that is valid in that country will also be valid in the state of
Florida. However, if the Will is written in a foreign language,
it must be translated into English and certified before it becomes
valid.
No Will becomes final until the death of the testator, and it may
be changed or added to by the testator by drawing a new Will or by
a "codicil," which is simply an addition executed with the same
formalities of a Will. 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 may invalidate part
of the Will or all of it.
- What a Will does for you
- What Can a Will Accomplish?
- You decide who gets your property instead of the law making
the choice for you.
- You may name the personal representative (executor) of your
Will as you choose, provided the one named can qualify under
Florida law. A personal representative is someone who manages
an estate, and may be either an individual or a bank or trust
company, subject to certain limitations.
- The expense of bond premiums, required of the person managing
your estate if there is no Will, may be waived in the Will and
possibly avoided.
- A Trust may be created in a Will whereby the estate or a
portion of the estate will be kept intact with income distributed
or accumulated for the benefit of members of the family or
others. Minors can be cared for without the expense of
proceedings for guardianship of property.
- Real estate and other assets may be sold without court
proceedings if your Will adequately authorizes it.
- You may make gifts, effective at or after your death, to
charity.
- A guardian may be named for minor children.
- May a Person Dispose of His Property in Any Way He Wishes by a Will?
While any sort of property may be transferred by Will, there are some
particular interests in property which cannot be willed because the right
of the owner terminates automatically upon his death, or others have been
granted rights in the property by Florida law. Some examples of these
types of property rights or interests are:
- Except in certain very specific circumstances a homestead (namely,
the residence and adjoining lands owned by a person who is survived by a
spouse or minor child up to one-half acre within limits of an
incorporated city or town or up to 160 acres outside those limits);
- A life estate (property owned only for the life of the owner); and
- Any property owned jointly with another person or persons with
right-of-survivorship (a tenancy by the entireties, which is limited
to joint ownership between a husband and wife, would be one of these).
A person may not disinherit his or her spouse without a properly executed
prenuptial or post-nuptial agreement, since the law gives a surviving spouse
a choice to take either his or her share under the Will, or 30% of the
decedent's property after debts, but before taxes and expenses of
administration. However, if the spouse elects to take the 30%, he or she must
pay any additional estate tax which results from that election. Also, if your
Will was made before the marriage and the Will does not either provide for
the spouse or show your intention not to provide for him or her, then your
spouse would receive the same share of your estate as if you had died without
a Will. In this instance, at least one-half of your estate will go to your
spouse unless provision for the spouse was made or waived in a pre-nuptial or
post-nuptial agreement.
- Must a Person Leave his Children at Least One Dollar Each?
In a word, no. There is a popular misconception that when a Will fails to
make provision for or "remember" a child, the law presumes that the testator
merely forgot. To meet this, the draftsman of a Will in olden times
frequently gave a child the sum of one dollar. These days, if the Testator
desires not to make any provision in his Will for a child, he may do so by
merely stating that "I have deliberately made no provision herein for the
benefit of my son, John, not because of any lack of love or affection, but
because he has ample property of his own," or for such other reason as the
Testator may wish to express.
Children born after a Will is signed or a child without adequate means of
support may still have certain rights in the estate under particular
circumstances.
- For How Long is a Will Good?
A Will is good until it is changed or revoked in the manner required by
law. Your Will may be changed as often as you desire while you are sane and
not under undue influence, duress or fraud, provided it is changed in the
required manner. Changes in circumstances after the execution of the Will,
such as tax law amendments, deaths, marriage, divorce, birth of children, or
even a substantial change in the nature or amount of your estate, may raise
questions as to the adequacy of your Will. All changes require a careful
analysis and reconsideration of all the provisions of your Will and may make
it advisable to change the Will to conform to the new situation.
- What Happens if You Die Without a Will?
If you die without a Will (intestate), your real and personal property will
be distributed according to a formula fixed by law. In other words, if you
fail to make a Will, the inheritance statute determines who gets your
property, not you. The inheritance statute contains a rigid formula and
makes no exception for those in unusual need.
When there is no Will, the court appoints a Personal Representative to
manage your estate. This person may or may not be known to you. The cost of
probating may be greater than if you had planned your estate with a Will,
and the administration of your estate may be subject to greater court
supervision.
- Last Letter of Instruction
A Will should be considered your "Last Letter of Instruction."
You create it while you are alive and it will be valid after your death.
It instructs people on how to dispose of or distribute the assets in your
estate. It identifies who shall be the guardian of your minor children.
A Will only has existence in the probate court. This means that a probate
estate must be opened before a Will has any validity. (An exception would be
if a guardian was named in the Will and the Will was filed with the probate
court solely to select the guardian.)
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