What is a Will?
A Will (often referred to as a Last Will and Testament) is a written document specifying the distribution of your assets after your death. Without a valid will, your assets will be distributed according to Florida’s intestate statutes. You are the “testator” of your will. In Florida a will must be in writing, and signed at the end by the testator, in the presence of two attesting witnesses. If you simply draft a document directing the distribution of your assets, without conforming to the statutory formalities, your wishes will not be recognized by the court during the Probate process, and your assets will be distributed according to Florida’s intestate statutes. Unless you are comfortable with the State deciding who gets your assets, it is important to carefully prepare and execute your Will.
The Personal Representative
Your Will may direct who you wish to serve as Personal Representative of your estate upon your death. The Personal Representative (frequently referred to as the “PR”) is appointed by the probate court to act on behalf of your estate. The PR supervises the marshalling of assets, payment of valid creditors, and distribution of assets to the beneficiaries. Before you name a PR, consider whether the probate court will permit that person to be appointed. For instance, Florida will not permit a felon to serve as PR, and, unless the PR is a qualifying relative, the PR must be a Florida resident. In addition, although multiple co-PRs can be appointed (and may be advisable, depending on the complexities of your estate), you should consider whether the co-PRs will be able to cooperate, or whether competing interests might lead to deadlock and wasted time and assets.
Considerations in Preparing Your Will
Although in general you may direct who gets your assets upon your death, Florida law does impose certain restrictions. For instance, if you leave your spouse less than 30% of your estate, he or she may elect to take 30% of your estate, rather than taking under your Will. While you and your spouse may agree to a particular arrangement leaving your spouse less than 30% of your estate, such an agreement will not be binding upon your spouse unless he or she has executed a valid pre- or postnuptial agreement. In addition, Florida puts strict restrictions on the devise of your permanent residence under your Will if you have a spouse or minor child. Your Will is also a valuable tool for appointing a guardian for your minor children in the event of your death.
Assets Passing Outside Your Estate
Upon your death, some assets may “pass” or be distributed outside of your estate. This can be either beneficial (if you intend to avoid the probate of certain assets), or detrimental (if you intend an asset to pass to beneficiaries of your estate, only to learn it passed to someone else, outside of your estate). Assets held in a Trust, or held jointly with a right of survivorship, are not assets of your estate. An example: If you and your daughter hold a joint bank account with a right of survivorship, the bank account will pass automatically to your daughter upon your death, even if your Will directs otherwise. The benefit in this example might be that your daughter would immediately receive the asset, without waiting for the probate of your estate. On the other hand, this result could be detrimental if you wanted your son and your daughter to each receive 50% of your assets. Your daughter would still receive 50% of your estate assets, PLUS the bank account, as the bank account would not be charged against your daughter’s 50% share. The effect of holding the joint bank account with your daughter could be to undermine your estate planing goals, and create unnecessary animosity between your daughter and son.