Copyright © 2019, The Law Office of Alain Roman, PLLC
At its most basic definition, a Florida last will and testament (“Florida Will”) is an instrument that disposes of your property at death. Contrary to popular belief, a Florida Will does not dispose of all your property, but only of probate assets.
A Florida Will 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.
Florida law provides strict requirements as to how the Florida Will must be executed to have validity at your death.
A Florida Will 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.
The one issue that I see the most is people that go online and print out a Florida Will. The problem with this approach is that you don’t execute it properly. Usually what I see is that you did not sign the Florida Will in front of the witnesses and in front of the notary.
The advantage of creating a will with an attorney is that the attorney can testify as to your capacity if it is ever an issue. This is specially important if you are older and maybe have diminishing health.
A Florida Will is not effective to transfer all assets at death. A will only transfers assets that are titled individually under your name and have no beneficiary designation. This is the definition of Florida probate assets.
Assets that have a beneficiary designation, and the beneficiary survives you, do not pass through a Florida Will. For example, a bank account with a designed beneficiary will not pass through the will. The reason for this is that the Bank has a contract obligation to transfer the funds to the beneficiary you listed under the account.
When there is a conflict between the language on the will 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 Florida Will, 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.
Creating a Florida Will is a straight ticket to Florida Probate Court. A will is not effective until introduced to the Probate Court and a Probate Judge finds the will as your valid last will and testament.
A Florida Will can be changed at any moment before death. This is the reason why you don’t record your will with the county where you reside or the courts.
Although having a will is better than not having one in the first place, if your goal is to avoid Florida Probate Court then you will need a Florida Revocable Living Trust.
The beneficiaries under your will do not have any right to your 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.
A Florida Will has some important functions, including but not limited to:
A Florida Will allows you to select a personal representative to administer your estate. The personal representative is in charge of collecting the assets that pass through Florida Will, pay creditors, and make distributions to beneficiaries.
The person you designate as your personal representative must wait for the Probate court to approve the appointment.
Another major role of a Florida Will 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.
Under your Florida Will, 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 Florida Will.
Depending on your specific bequests, this could be the smallest or largest portion of your gifts.
Through your Florida Will, you can set up a testamentary trust at death. A testamentary trust is basically a trust inside your Florida Will.
The reason why you would want to create a testamentary trust over creating a revocable living trust during your lifetime may be that you want court involvement in the process or if you have any beneficiaries with special needs or receiving Medicaid.
In the event that you pass away without a valid Florida Will, 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.
If you have no spouse and no children then your assets will go down the Florida Intestacy Statute succession. At the of the ladder is the State of Florida. In order for the State of Florida in inherit your assets you basically must have absolutely no heirs.
Creating a Florida Will is always recommended even if you created your estate plan and presumably everything passes outside of Probate. If you have minor children, creating a Florida Will 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.
There are some issues you must be aware when creating your Florida Will.
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 Florida Will 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.
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.
A Florida Will must be signed at the end and witnessed by two people. You must all sign in the presence of each other. In addition, have a self-proving affidavit, which must be notarized, makes it so that the witnesses do not have to present themselves when introduced in court. It also gives the Florida Will more validity.
Technically you could write your own Florida Will. However, if you write your own will is likely that it will be contested or a minimum you will fail to cover all the important aspects that a Florida Will should cover.
Be mindful that Florida does not recognize Holographic Wills. You need to make sure that you execute your will according to Florida law.
Depending on where you live, the experience of the attorney, and the complexity of your case will affect the price of the will. However, for most simple wills, you can expect the estate planning attorney to charge you a fee between $300 and $750 in Miami-Dade County.
The answer to this question is NO. A Florida last will is a straight ticket into court.
When you die without a Florida Will, your heirs will inherit your assets. The State of Florida will only keep your assets only if you have no heirs.
There are a few things that will invalidate a Florida Will. First, if you don't have the capacity to make the will. Second, if you were coerced or the will was procured by fraud or undue influence. Finally, if you don't execute the will according to Florida law.
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 at (305) 489-1415.