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FLORIDA LAST WILL AND TESTAMENT
WHAT IS A LAST WILL AND TESTAMENT IN FLORIDA?
At its most basic definition, a Florida last will and testament is an instrument that disposes of your property at death. Contrary to popular belief, a last will and testament does not dispose of all your property, but only of probate assets.
A last will and testament is also used to revoke any previous wills that you might have created and to appoint the person you want handling your estate through at the Florida probate court. In Florida this person is called the personal representative.
Requirements of a Florida Last Will and Testament
Florida law provides strict requirements as to how the last will and testament must be executed to have validity at your death.
In Florida, a last will and testament must be signed by you at the end of the document, in front two attesting witnesses, who must sign or acknowledge that you signed the last will and testament. Fla. Stat. 732.502(1). The witnesses and you must sign in the presence of each other, failure to abide by these rules could declare the Florida last will and testament invalid if challenged later in Probate court.
One important thing to consider is that a holographic will, that is a will in your own handwriting, signed by you alone is not valid in Florida to transfer property. A handwritten last will and testament could be valid so long as it is properly executed as described above.
ASSETS THAT PASS THROUGH A FLORIDA LAST WILL AND TESTAMENT
In Florida, only assets that are individually titled under your name and have no survivorship designation or beneficiary designation pass through a Florida last will and testament. Therefore, investment properties and business entities titled under your individual name will pass through your last will and testament. However, assets titled under your Florida Revocable Trust or with a survivorship designation (a bank account with a beneficiary designation) will pass outside of your last will and testament.
When there is a conflict between the language on the Florida last will and testament and the beneficiary listed under a particular asset, the beneficiary designation will control. For example, if you list your children as beneficiary of your life insurance policy under your last will and testament, but you had previously listed your spouse as the beneficiary under the life insurance policy, the beneficiary designation under the life insurance policy will control and the proceeds will go to your spouse at death.
EFFECT OF YOUR FLORIDA LAST WILL AND TESTAMENT BEFORE AND AFTER DEATH
A Florida last will and testament has no effect until you pass away and the last will and testament is admitted into Probate court. Probate is a court-supervised process, in which the assets that pass through your last will and testament are used to pay your debts and are then distributed to your beneficiaries as provided in your last will and testament.
A Florida last will and testament can be revoked at any time prior to your passing. The will can also be amended at any time by creating a “codicil.”
The beneficiaries under your last will and testament will not have any right to your probate assets until the time you pass away and the will is introduced to the probate court at the county where you were a resident or held real property. The will alone does not grant your beneficiaries any rights, a probate judge must find that your last will and testament was executed property according to Florida law, and then distributed through the probate proceedings.
PURPOSE OF A LAST WILL AND TESTAMENT AND WHY YOU SHOULD CREATE A WILL IN FLORIDA
A Florida last will and testament has some important functions, including but not limited to:
- Nominate a personal representative;
- Nominate guardian(s) for your children;
- Make specific bequests; and
- Create testamentary trusts.
- PERSONAL REPRESENTATIVE
A Florida last will and testament allows you select a personal representative to administer your estate. The personal representative is in charge of collecting the assets that pass through your last will and testament; paying creditors; and making distribution to the beneficiaries, among others. The person you appoint as your personal representative must wait for the Probate court to approve the appointment.
Another major role of a Florida last will and testament is selecting a guardian(s) for your minor children. This is particularly needed if there is no surviving parent to raise the children. Although the court does not have to follow your appointment, it will give major deference to your choice. This avoid family conflict by not having different sides of the family fighting for your child’s custody. It also allows you to choose who you think its best to raise your child based on your values and beliefs.
- SPECIFIC BEQUESTS
Under your Florida last will and testament, you may make specific bequests of your property. A bequest is a testamentary gift where you leave something specific to your beneficiary. Specific bequests include gifts of real property, tangible personal property, and cash. Anything left over after the payments of debts, costs of administration, funeral expenses, and specific bequests, is transferred to your beneficiaries through the residuary bequest in your last will and testament. Depending on your specific bequests, this could be the smallest or largest portion of your gifts.
- TESTAMENTARY TRUST
Through your Florida last will and testament, you can set up a testamentary trust at death. The testamentary trust does not come into effect until your death and after the last will and testament is admitted into Probate. In order for the testamentary trust to be created there must be assets to properly fund the trust. A testamentary trust allows you further control after death.
WHAT HAPPENS IF I DIE WITHOUT A LAST WILL AND TESTAMENT?
In the event that you pass away without a valid last will and testament, the Florida’s intestacy statute will dictate who are going to be the beneficiaries of the assets that do not have any beneficiary or survivorship designation. Florida law has a preference for your spouse.
If you have no children, then all of your property will pass to your spouse. If your children are of the same marriage and you do not have any children from previous marriages, then all your property will go to your spouse as well. If either you or your spouse have children from different marriages, then your spouse will inherit one-half (1/2) of your assets and your children will inherit the other one-half (1/2) equally. If you die without a surviving spouse, then all your property passes to your children in equal shares.
BENEFITS OF CREATING A FLORIDA LAST WILL AND TESTAMENT
Creating a Florida last will and testament is always recommended even if you created your estate plan and presumably everything passes outside of Probate. If you have minor children, creating a last will and testament is extremely important because it allows you to select who are going to be the guardians for your children.
There are errors and omissions that can make what seems like a good plan go completely wrong. This includes forgetting to title your asset into the trust (if any), improperly funding the Florida Revocable Trust, or filing the beneficiary designation form incorrectly. The last will and testament will serve as a catch all to assure that your assets are distributed in the way you want.
THINGS TO WATCH OUT FOR WHEN CREATING YOUR LAST WILL AND TESTAMENT
There are some issues you must be aware when creating your last will and testament. The first thing you must be aware of is the Florida Homestead Law. Florida Homestead states that if you have minor children, then your Homestead may not be devised in a Will or a Trust. Meaning that if you create a last will and testament and you pass away before your child’s 18th birthday, then that transfer will be invalid.
If you are survived by a spouse, but no minor children, then you can also devise your Homestead to your spouse, subject to any spousal waivers.
These provisions are particularly important for blended families. Usually, the spouse will want to leave their Homestead to the kids from a previous marriage, however, this devise in the last will and testament or the living trust will be invalid unless your spouse signs a waiver of Homestead.
If the Homestead is invalidly devised, then your spouse will obtain a life estate in the property, meaning they will get to live in the Homestead until his or her death, and your children will get a remainder interest. Your spouse may elect to take a 50% interest in the property and your children will get the remainder 50% if your spouse makes that election.
The second thing to watch out for is when requiring the property to be sold by your personal representative and the proceeds of the sale distributed to your beneficiaries. Assuming that the real property is your Homestead, then your beneficiaries will obtain your Homestead free and clear from any creditors subject to some exceptions like a mortgage on the property. However, if you require the personal representative to sell the Homestead and distribute the proceeds then those proceeds will no longer have creditor protection.
DO YOU NEED TO FILE THE LAST WILL AND TESTAMENT WITH THE COURT ONCE YOU CREATE IT?
This is a common question that I get all the time. When you execute your last will and testament, all that you need to do is to store it in a safe place where someone could find it in the event of your passing.
A last will and testament does not become effective until you pass away. The will is ambulatory, meaning you can change it any time prior to your death.
Once you pass away, then the last will and testament is introduced into court where a probate judge will determine whether that is your last will and testament, was validly executed, and will appoint your personal representative.
WHAT IS THE TAKE AWAY?
A Florida last will and testament is an essential part of any estate plan. It is the last opportunity for you to express your wishes. Depending on the size of your estate, the Probate process could potentially be lengthy and expensive. Having a will simplifies the process, and makes the Probate administration run a lot smoother, which can save your estate a lot of money in attorney’s fees.
At The Law Office of Alain Roman, PLLC, estate planning attorney Alain Roman can meet with you, discuss any concerns you may have with regards to your property, and help you create your Florida last will and testament. We want to help you put your estate planning concerns to rest. Do not hesitate to send us any questions you may have. Call us today to book a free consultation.