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What is a Will?

A will is a written directive controlling the disposition of property at death.  The laws of each state set the formal requirements for a legal will.

In Florida:
-You, the maker of the will (called the Testator), must be at least eighteen 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 and notarized in the manner provided by Florida law for wills.
-It is necessary to follow exactly the formalities required by Florida law for the execution of a will.
-To be effective, your will must be proved valid in and allowed by the probate court.

No will becomes final until the death of the Testator.  It may be changed or added to by the Testator by drawing a new will or by a “codicil” which an amendment executed with the same formalities as a will.  A will’s terms cannot be changed by writing in or crossing something out after the will was executed.  In fact, writing on the will after its execution may invalidate part or all of the will.

What can be accomplished by a will?

-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 trust may be created in your will whereby the estate or a portion of the estate will be kept intact with income distributed to 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 appointed for minor children.

 What happens if there is no Will?

If you die without a 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.  In other words, if you fail to make a will, the inheritance statute (below) determines who gets your property. When there is no will, the court appoints a Personal Representative, known or unknown to you, to manage your estate.  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.

Florida Inheritance Statutory Provisions:
If the decedent died intestate, the decedent’s probate assets will be distributed to the decedent’s heirs in the following order of priority:
-If the decedent was survived by his or her spouse but left no living descendants, the surviving spouse receives all of the decedent’s probate estate.
-If the decedent was survived by his or her spouse and left one or more living descendants (all of whom are the descendants of both the decedent and his or her spouse), and the surviving spouse has no additional living descendants (who are not a descendant of the decedent), the surviving spouse receives all of the decedent’s probate estate.
-If the decedent was survived by his or her spouse and left one or more living descendants (all of whom are the descendants of both the decedent and his or her spouse), but the surviving spouse has additional living descendants (at least one of whom is not also a descendant of the decedent), the surviving spouse receives one-half of the probate estate and the decedent’s descendants share the remaining half.
-If the decedent was not married at his or her death but was survived by one or more descendants, those descendants will receive all of the decedent’s probate estate in the manner prescribed by Florida law.
-If the decedent was not married at his or her death and had no living descendants, the decedent’s probate estate will pass to the decedent’s surviving parents, if they are living, or if not, to the decedent’s brothers and sisters.

Homestead Property

There are exceptions under Florida’s intestate laws, as discussed above, for homestead property.  For example, if the decedent’s homestead property was titled in the decedent’s name alone, and if the decedent was survived by a spouse and descendants, the surviving spouse will have the right to the use of the homestead property for his or her lifetime only (a life state), with the decedent’s descendants to receive the homestead property only after the surviving spouse dies.  Or, the surviving spouse can instead make a special election within six months of the decedent’s death to receive an undivided one-half interest in the homestead property in lieu of the life estate.

 May you dispose of your property in any way you wish by a will?

While any sort of property may be transferred by will, there are some particular interests in property that cannot be willed because the right of the owner terminates automatically upon death, or others have been granted rights in the property by Florida law.

Some examples of these types of property rights or interest are:
-A homestead.
-A life estate where property is “owned” only during the life of the owner.
-Any property owned jointly with another person or persons with the right of survivorship.
-Any property owned by a married couple as tenants by the entireties.

Must I leave each child at least one dollar?

No.  This is not necessary and can actually cause considerable expense to the estate.  It is better to simply state in the will that no provision is being made for that child.

How long is a will good?

It 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 laws, birth of children, deaths, marriage, divorce, or even a substantial change in the nature or amount of your assets, may raise questions as to the adequacy of the will.