Wills in Florida

Do You Have A Will?

1.    WHAT IS A WILL?

A will (sometimes referred to as a "last will and testament") is a written direction controlling the disposition of property at death. The laws of each state set the formal requirements for a legal will. The Florida law of wills and trusts provides;

    1. You, the maker of the last will and testament (called the testator), must be at least 18 years old.

    2. You must be of sound mind at the time you sign your will.

    3. Your will must be written.

    4. Your will must be witnessed and notarized in the special manner provided by Florida law for wills.

    5. It is necessary to follow exactly the formalities required for the execution of a last will and testament. A Fort Myers estate planning lawyer can assist you with ensuring that the formalities required by Florida law for a valid last will and testament are properly followed.

    6. To be effective, your last will and testament must be proved in and allowed by the Florida probate court. A "self-proved" last will and testament allows for the probate court to immediately allow the will's admission to probate.  A Fort Myers Florida wills and trusts lawyer or attorney can assist you in self-proving your will.

No last will and testament 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 or amendment executed with the same legal formalities of a last will and testament. A last will's terms cannot be changed by writing something in or crossing something out after the last will is executed. In fact, writing on the last will and testament after its execution may invalidate part of the will or all of it.

2.    WHAT CAN BE ACCOMPLISHED BY A LAST WILL AND TESTAMENT?



    1. You decide who gets your property instead of the
Florida intestacy law making the choice for you.

    2. You may name the personal representative (executor) of your last will and testament as you choose, provided the one named can qualify under the Florida law for wills and trusts. A personal representative is one who manages a probate estate, and may be either an individual or a bank or trust company, subject to certain limitations provided by Florida law.  Your Fort Myers estate planning attorney can provide you with guidance on whether a particular individual can legally serve as personal representative of your probate estate.

    3. A testamentary trust may be created in a last will and testament 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 other beneficiaries you may designate. Minors can be cared for without the expense of proceedings for guardianship of the property.

    4. Real estate and other assets may be sold without court proceedings, if your last will and testament adequately authorizes it. One of the reasons for obtaining the services of an experienced Fort Myers estate planning attorney is to ensure that your last will and testament contains all of the directions and authorizations allowed by law, consisitent with your estate planning objectives. 

    5. You may make gifts, effective at or after your death, to charity with appropriate provisions in your last will and testament.

    6. You decide who bears any tax burden, rather than the law making that decision.

    7. A guardian may be named for minor children.  This is one of the most important reasons for preparing a last will and testament.  Without a direction in your last will and testament of who is to have custody of and care for your children, the decision will be made by a probate judge who may or may not know anything about your desires and the best interests of your children.  Such a provision in your last will and testament will also potentially eliminate disagreements among surviving family members about who will care for your children. 

3.    WHAT HAPPENS WHEN THERE IS NO WILL?

If you die with no will (this is called dying "intestate"), your property will be distributed to your heirs according to a formula fixed by Florida law. Your property does not go to the State of Florida unless there are absolutely no heirs at law, which is very unlikely. In other words, if you fail to make a last will and testament, 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 last will and testament, the court appoints a personal representative, known or unknown to you, to manage your estate. The cost of probate for your intestate estate may be greater than if you had planned your estate with a last will and testament, and the administration of your estate may be subject to greater court supervision, which inevitably means higher costs. If you have minor children and have not made provision for the management of the assets you leave for their benefit in a last will and testament, the probate court will appoint a guardian of the property of the minor children.  The guardian will be responsible for managing the assets for the benefit of your children.  Upon each child's 18th birthday, the probate court will turn over to each child his or her share of their inheritance to do with as they please, and without guidance or direction from anyone.

4.    MAY A PERSON DISPOSE OF HIS OR HER PROPERTY IN ANY WAY HE OR SHE WISHES BY A WILL?

While any sort of property may be transferred by a last will and testament, there are some particular interests in property which cannot be willed because the right of the owner terminates automatically upon his or her 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 Florida exempt homestead (that is, the residence and adjoining lands owned by a person who is survived by a spouse or minor child for 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;

    • 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 premarital agreement or postmarital agreement. The Florida probate law gives a surviving spouse a choice to take either his or her share under the last will and testament or a portion of the decedent's property determined under Florida's "elective share" statute. This statute uses a formula to compute the size of the surviving spouse's elective share, which includes amounts stemming from the decedent's jointly held and trust property, life insurance, and other non-probate assets. Because this formula is very complicated, it is usually necessary to refer this matter to a Florida estates and trusts attorney with extensive experience in this area of Florida law. Also, if your last will and testament 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 last will and testament (at least one-half of your estate) unless provision for the spouse was made or waived in a premarital or postmarital agreement.

5.    MUST A PERSON LEAVE A CHILD AT LEAST ONE DOLLAR?

No. This is not necessary and can actually cause considerable added expense to the probate estate. It is better simply to state in the last will and testament that no provision is being made for that child. You should consult your Fort Myers estate planning attorney to ensure that you properly provide for the disinhertance of a child in such a manner that it will be less likely that the child can successfully challenge the provisions of your last will and testament.

6.    HOW LONG IS A WILL GOOD?

It is "good" until it is changed or revoked in the manner required by Florida law. Your last will and testament 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 last will and testament, 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 last will and testament. All changes require a careful analysis and reconsideration of all the provisions of your last will and testament and may make it advisable to change the will to conform to the new situation.

7.    DOES A WILL INCREASE PROBATE EXPENSES?

No. If there is property to be administered or taxes to be paid or both, the existence of a last will and testament does not increase probate expenses. A last will frequently reduces expenses. If there is real or personal property to be transferred at your death, the Florida probate court will have jurisdiction to ensure that it is transferred properly, either according to your last will and testament, or, if there is no will, in accordance with the inheritance statute. Thus, even if you have no last will and testament, your heirs must go to court to administer your estate, obtain an order determining your legal heirs, or obtain a determination that administration is unnecessary. These procedures are often more expensive than administering your last will and testament, since a properly drawn will names the beneficiaries and delineates procedures to simplify the administration process.

8.    ARE ESTATES BY ENTIRETIES OR JOINT TENANCY WITH RIGHT OF SURVIVORSHIP SUBSTITUTES FOR A LAST WILL AND TESTAMENT?

Joint tenancies with rights of survivorship can be established when two or more persons title bank accounts and other assets in their multiple names with the intent to have ownership pass directly to the surviving named owners when one dies. A "tenancy by the entireties" is much the same but involves only married persons. These forms of joint ownership can avoid probate of the account or other asset when an owner dies. While this can be very efficient in some cases, use of joint ownership can be fraught with problems at death and cause more problems than it solves.

Among other unforeseen problems, indiscriminate use of joint ownership can cause an increase in estate taxes over the joint lives of married persons, force double probates in the event of simultaneous deaths, create unfairness as to who pays for funeral expenses and claims against the decedent, raise undesired exposure during life to the debts of co-owners, and cause a shortage of funds for payment of estate taxes which can cause litigation with the taxing authorities. Joint ownership with rights of survivorship can also result in the "wrong" person receiving your property after your death.  Circumstances can change in ways that are unforseeable and can result in your property going to someone other than who you expected when joint tenancy with rights of survivorship is used.  Before relying on joint ownership of property as a method of transferring assets at death, consult your Fort Myers estate planning attorney to determine whether there is an alternative that is more certain than joint tenancy.

9.    IS A LIFE INSURANCE PROGRAM A SUBSTITUTE FOR A WILL?

No. Life insurance is only one kind of property that a person may own and a last will and testament is necessary to dispose of other assets that a person owns at death. If a life insurance policy is payable to an individual, the last will and testament of the insured has no effect on the proceeds. If the policy is payable to the estate of the insured, the disposition of the proceeds may be directed by the last will and testament. Life insurance can be useful in providing cash at death for payment of taxes and expenses, but like most strategies for insurance, the careful person will consult an experienced estate planning lawyer, a life insurance counselor, and a financial advisor. Mistakes in ownership and beneficiary designations in these policies can cause great increases in estate taxes owed.  Providing for your minor chilidren to be the designated beneficiaries of life insurance can also result in the appointment by the probate court of a guardian of the property for your minor children.  That guardian will be responsible for managing and investing the life insurance proceeds for your minor children until they reach 18 years of age.  At age 18 the guardian is required by Florida law to turn over to the 18 year old child all of the assets being held for that child's benefit. 

10.    IS A REVOCABLE LIVING TRUST A SUBSTITUTE FOR A LAST WILL AND TESTAMENT?

No, in most situations. A revocable trust may be used in addition to a last will and testament. This is because a trust can handle only the property that has been put into it. Any property of a person that is not placed in the living trust either during life or at death in most instances escapes the control of the trust. It is the last will and testament that controls all property in a decedent's name at the time of death if the will is drafted properly. Revocable trusts can be helpful to speed administration and save taxes if they are drafted properly and funded during life with the property intended to be transferred by the revocable trust. Often, however, improperly drafted or incorrectly funded or administered living trusts can add to the cost of settling estates, not lower it. Furthermore, it is the probate of the will that can clear creditors' claims, which is not possible with just a trust administration.

11.    DO YOU HAVE TO GO TO COURT TO PROBATE A WILL?

No, personal court appearances are usually not needed to probate a will. However, documents must be filed with the court to procure a probate order and administer estates. In most counties, neither the estate's probate attorney nor the interested persons ever appear in the courtroom.



12.    CAN A WILL REDUCE FEDERAL ESTATE TAXES?

A well-drawn last will and testament can reduce estate and income taxes that may arise when someone dies. Federal estate taxes are often by far the largest cash expense an estate can have. There is also the possibility that Congress may increase the impact of the federal estate tax in the future. In addition, proper planning must be made for income tax advantages. Proper planning with a last will and testament is indispensable in taking these benefits in the tax codes. An experienced estate planning lawyer or attorney can help you ensure that you take advantage of all of the tax planning options that are available to you when you draft your will.

13.    WHO SHOULD PREPARE A WILL?

No sensible person would employ "just anyone" to fill teeth, take out an appendix, or deliver a baby. The person who wants these services performed skillfully with the minimum risk to health, life, property, or the accurate execution of his or her wishes, will engage the services of a trained person. Except in dire emergency, these important tasks should not be performed by anyone except the professional.

The drafting of a last will and testament involves making decisions that require professional judgment which can be obtained only by years of training, experience, and study. There are many statutes and court cases that interpret the language of wills and trusts. The application of these statutes and the case law to a particular set of circumstances can be properly accomplished only by an experienced estate planning attorney or wills and trusts lawyer.  Only the practicing estate planning lawyer can avoid the innumerable pitfalls and advise the course best suited for each individual situation. In addition, an experienced estate planning attorney will be able to coordinate the use of other skilled professionals, such as an investment advisor, actuary, insurance specialist, and tax accountant to complete a proper estate plan.

Moreover, there is no such thing as a “simple will.” Even smaller estates can have complexities only foreseeable by the experienced estate planning attorney.

13.    SOME SUGGESTIONS CONCERNING WILLS

    
1. Marriage does not cancel a will in Florida, but a spouse acquired after the execution of a will may receive the same portion of your estate that he or she would have received had you died without a will (at least one-half).

    2. If you have moved to Florida from another state, it is wise to have your will reviewed by a Florida lawyer in order to be sure that it is properly executed according to the laws of Florida, that the witnesses are readily available to prove your will in Florida, and that your personal representative is qualified to serve in Florida.

    3. Before your will is effective to dispose of your property, it must be proved in the probate court. If the will is self-proving and otherwise valid, it may be admitted to probate without further proof. If the will is not self-proving, it generally must be proved by the oath of one of the witnesses. The oath must be given before a circuit judge, clerk of court, or a commissioner specially appointed by the court for that purpose. (Under certain circumstances, the court may permit the will to be proved by other means permitted by law.) A will can be made self-proving either at the time of its execution or later, which saves the time and expense of locating a witness and obtaining his or her oath after your death. For your will to be made self-proving, you must acknowledge the will before an officer authorized to administer oaths; the witnesses must make affidavits before the officer; and the officer must evidence the acknowledgment and affidavits by a certificate attached to or following the will. An appropriate form of certificate is prescribed by Florida law. The self-proving procedure is in addition to the normal execution and witnessing of the will, not in place of it.

    4. No matter how perfect a will may be prepared for you, unless it is properly executed in strict compliance with the laws of Florida, the will may be entirely void. Be sure that you execute your will in the presence of your wills and trust attorney, who knows exactly how and in what order the will should be signed.

    5. Every person owning property who wishes to exercise control in the disposition of that property when he or she dies, should have a will regardless of the value of the property. Of course, the larger the estate the greater the tax consequences.

    6. The following additional documents should be considered for signing when you make your will:

        • Living Will: Florida Statutes now provide for a written declaration by an individual specifying directions as to use of life-prolonging procedures.

        • Durable Power of Attorney: This document can assist in handling the property of a person who has become incapacitated without having to open a guardianship proceeding in court. This is especially valuable for paying the bills and protecting the assets of an incapacitated person.

        • Health Care Surrogate: Florida law now allows individuals to designate a person to make health care decisions for them when the individual may not be able to do so. Included in this important appointment is the power to decide when to withdraw medical procedures. 

        • Pre-Need Guardian Designation: Florida law allows you to designate a person who could be appointed guardian over you should you become incapacitated and/or over your children should you become incapacitated or upon your death. If you fail to designate a guardian, the Court will do so for you if and when it becomes necessary.


This material represents general legal information. Since the law is continually changing, some provisions may be out of date. It is always best to consult an experienced estate planning attorney about your legal rights and responsibilities regarding your particular case.

Florida Counties and cities in which the Ft. Myers Florida estate planning, elder law, guardianship, Medicaid planning, nursing home abuse, and probate lawyers and attorneys offer Ft. Myers Florida estate planning, nursing home abuse, elder law, Medicaid planning, guardianship, and probate services:

Alachua estate planning lawyers

Gainesville probate lawyer, Alachua, Hawthorne, High Springs, Waldo, Newberry, Micanopy

Bay wills and trusts lawyers

Panama City probate lawyer, Panama City Beach, Lynn Haven, Youngstown

Baker estate planning attorneys

Macclenny, Glen Saint Mary

Bradford wills and trusts lawyers 

Starke, Brooker, Hampton

Brevard wills and trusts attorneys 

Cocoa, Cocoa Beach, Merritt Island, Titusville, Melbourne probate lawyer, Palm Bay, Cape Canaveral, Satellite Beach, Rockledge, Barefoot Bay, Indialantic, Malabar

Broward living will lawyer 

Ft. Lauderdale probate lawyer, Davie, Sunrise, Weston probate lawyer, Coral Springs probate lawyer, Pompano Beach, Hollywood probate lawyer, Hallendale, Plantation, Dania Beach, Coconut Creek, Deerfield Beach, Lauderhill, Lighthouse Point, Margate, Miramar, Oakland Park, Pembroke Pines, Tamarac, Wilton Manors, Hillsboro Beach, Pembroke Park, Cooper City, Port Everglades, Sea Ranch Lakes, Southwest Ranches

Calhoun wills and trusts attorneys

Blountstown

Charlotte estate planning lawyers 

Punta Gorda, Charlotte, Port Charlotte, Palm Island

Citrus wills and trusts attorneys

Crystal River, Homosassa Springs, Inverness

Clay estate planning lawyers

Orange Park probate lawyer, Middleburg, Green Cove Springs, Keystone Heights, Penny Farms

Collier wills and trusts attorneys

Naples probate lawyer, Marco Island, Everglades City, Golden Gate, Immokalee, Palm River Estates, Ochopee

Columbia estate planning attorneys 

Lake City probate lawyer, Fort White

DeSoto wills and trusts lawyers

Arcadia, Brownville, Fort Ogden, Hull, Pine Level, Platt

Dixie estate planning attorneys

Cross City, Horseshoe Beach, Old Town

Duval wills lawyers

Jacksonville, Jacksonville Beach, Atlantic Beach, Neptune Beach

Escambia trust attorneys

Pensacola probate lawyer

Flagler durable power of attorney lawyer

Palm Coast probate lawyer, Flagler Beach, Bunnell, Beverly Beach, Marineland

Franklin

Apalachicola

Gadsden

Quincy, Chattahoochee

Gilchrest

Trenton

Glades

Moorehaven

Gulf wills lawyers

Port St. Joe, Wewahitchka

Hamilton wills lawyers

Jasper, White Springs

Hardee Florida lawyers

Wauchula

Hendry Florida attorneys

Clewiston, LaBelle

Hernando lawyers

Brooksville, Weeki Wachi

Highlands attorneys

Avon Park, Sebring, Lake Placid, Leisure Lakes

Hillsborough estate planning attorneys

Tampa probate lawyer, Plant City, Temple Terrace, Apollo Beach, Brandon, Lutz, Ruskin, Sun City Center, Riverview, Dover, Thonotosassa, Ybor City

Holmes lawyers

Bonifay

Indian River attorneys

Vero Beach probate lawyer, Indian River Shores, Fellsmere, Sebastian

Jackson lawyers

Marianna

Jefferson wills lawyers

Monticello

Lafayette lawyers

Mayo

Lake wills and trusts attorneys

Altoona, Clermont, Eustis, Fruitland Park, Lady lake, Leesburg, Minneola, Mount Dora, Tavares, Umatilla

Lee County estate planning attorneys

Fort Myers probate lawyer, Bonita Springs, Cape Coral, Fort Myers Beach, Sanibel, Boca Grande, Estero, San Carlos Park, Lehigh Acres, Waterway Estates

Leon wills and trusts lawyers

Tallahassee probate lawyer

Levy Florida lawyers

Bronson, Cedar Key, Chiefland, Williston, Yankeetown

Liberty lawyers

Bristol

Madison attorneys

Madison

Manatee estate planning lawyers

Bradenton probate lawyer, Anna Maria Island, Bradenton, Holmes Beach, Longboat Key, Palmetto, Myakka City

Marion wills and trusts lawyers

Ocala probate lawyer, Leesburg, Belleview, Citra, Dunnellon, Salt Springs, Weirsdale

Martin estate planning attorneys

Stuart probate lawyer, Sewall’s Point, Hobe Sound, Jensen Beach, Jupiter Island, Ocean Breeze Park, Palm City

Miami-Dade estate planning abogados 

Miami probate lawyer, Coral Gables probate lawyer, Coconut Grove, South Miami, Kendall, Homestead, North Miami, North Miami Beach, Miami Beach, Hialeah, Miami Shores, Miami Lakes, Aventura, Bal Harbour, Bay Harbor Islands, Hialeah Gardens, Key Biscayne, Pinecrest, Surfside, Cutler Bay, Doral, Golden Beach, Indian Village, Islandia, Medley, Miami Gardens, North Bay Village, Sunny Isles Beach, Sweetwater, Virginia Gardens, Florida City, Goulds, Biscayne Park

Monroe wills and trusts lawyers

Key West, Islamorada, Key Largo, Marathon, Big Pine Key, Key Colony Beach, Sugarloaf Key, Tavernier

Nassau estate planning attorneys 

Fernandina Beach probate lawyer, Amelia Island, Hilliard, Yulee, Callahan

Okaloosa wills and trusts lawyers 

Fort Walton Beach probate lawyer, Niceville, Cinco Bayou, Destin, Shalimar Valparaiso

Okeechobee Florida lawyers

Okeechobee

Orange estate planning attorneys 

Orlando probate lawyer, Lake Buena Vista, Apopka, Edgewood, Maitland, Ocoee, Windemere, Winter Garden, Winter Park, Zellwood

Osceola wills and trusts lawyers

Kissimmee, St. Cloud, Celebration

Palm Beach estate planning attorneys

Palm Beach probate lawyer, West Palm Beach, North Palm Beach, Lake Worth probate lawyer, Boca Raton probate lawyer, Delray Beach, Boynton Beach, Greenacres, Highland Beach, Hypoluxo, Juno Beach, Jupiter, Lake Park, Lantana, Ocean Ridge, Palm Beach Gardens, Royal Palm Beach, Wellington, Pahokee, Tequesta, Riviera Beach, Loxahatchee, Manalapan, Ocean Ridge, Glen Ridge

Pasco wills and trusts attorneys

New Port Richey, Bayonet Point, Gulf Harbors, Dade City, Holiday, Hudson, Land O’Lakes, Odessa, St. Leo, Zephyrhills

Pinellas estate planning lawyers

St. Petersburg probate lawyer, Clearwater probate lawyer, Dunedin, Gulfport, Largo, Oldsmar, Pinellas Park, Safety Harbor, Tarpon Springs, Treasure Island, Belleair, Madeira Beach, North Redington Beach, Seminole, Indian Rocks Beach                  

Polk estate planning lawyers

Lakeland probate lawyer, Auburndale. Bartow, Eagle Lake, Fort Meade, Haines City, Lake Alfred, Lake Wales, Winter Haven, Frostproof, Polk City, Highland Park, Indian Lake Estates

Putnam Florida attorneys 

Palatka, Interlachen

Santa Rosa estate planning lawyers

Gulf Breeze, Milton

Sarasota estate planning attorneys

Sarasota probate lawyer, Longboat Key, North Port, Venice

Seminole wills and trusts lawyers 

Altamonte Springs, Casselberry, Lake Mary, Longwood, Oviedo, Sanford, Winter Springs

St. Johns estate planning attorneys 

St. Augustine probate lawyer, St. Augustine Beach, Ponte Vedra Beach probate lawyer, Nocatee, Crescent City, Melrose, Pomona Park, Welaka

St. Lucie Florida attorneys 

Fort Pierce probate lawyer, Port St. Lucie

Sumter lawyers

Wildwood, Bushnell, The Villages probate lawyer

Suwannee lawyers

Live Oak

Taylor lawyers

Perry, Steinhatchee

Union lawyers

Lake Butler

Volusia estate planning attorneys

Daytona Beach probate lawyer, Ormond Beach, New Smyrna Beach, Deland, Deltona, Edgewater, Holly Hill, Ponce Inlet, Port Orange

Wakulla  wills and trusts lawyers

 

Walton estate planning lawyers

DeFuniak Springs, Seaside

Washington lawyers 

Chipley

 

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