Wills are surprisingly difficult to get done, no matter what amount of assets you have. For many, it feels like an acknowledgment of our own mortality. However, you’ve spent your entire life building your asset portfolio; it is important to direct where it goes. An experienced lawyer can assist you in drafting your will, so you get the results you desire.
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. Your assets will be distributed according to Florida’s intestate statutes without a valid will. 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.
Requirements to Create a Will in Florida
To create a will under Florida law, you must:
- Be 18 years old or older, or be an emancipated minor
- Be of sound mind. That is to say, at the time you create your will, you must be able to understand three basic things:
- The extent and nature of the property your will covers.
- Your relationship to those who stand to inherit your assets according to your will.
- The practical effect of your will.
Witnessing and Executing your Will
For your will to be valid under Florida law, it generally must be properly executed and witnessed. This means:
- You must sign at the end of your will while in the presence of at least two competent witnesses.
- Your decision to execute your will must be free and voluntary. It can’t be the result of improper persuasion or coercion.
- Your witnesses must each sign your will while in the presence of yourself and the other witness(es).
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 marshaling 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 generally, you may direct who gets your assets upon your death, Florida law does impose certain restrictions. For instance, (in the absence of a prenuptial or postnuptial agreement), 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. In addition, Florida puts strict restrictions on the devise of your permanent residence (homestead) 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.
Revoking Your Will
Generally speaking, in Florida, you can revoke or void your will at any time before you pass. There are two main ways you can revoke your will:
- Intentional Act. If you deliberately destroy your will, it will be revoked and no longer legally valid. It’s best to have several witnesses to this.
- Execute a New Will. A more recent, properly executed will overrides any previous wills, but only affects the parts you’ve updated. For example: If you gift your car to your son in your first will but decide to give it to your daughter in your new will, the car will go to your daughter. But if you don’t mention the car at all in your new will, it will go to your son.
You can also entirely void any prior wills by including language in your new will, revoking all prior wills. This is your safest option by far to avoid costly probate confusion.
Changing your Will Via Codicil
If you’d like to change your will, you may consider a codicil rather than revoking it completely. A codicil is simply a legal document that amends or changes your existing will. Codicils must be executed and witnessed just like a will to be legally enforceable. Codicils can be tricky because keeping track of multiple documents can be challenging. Generally speaking, it’s better to simply create a new will. Also, if two codicils to the same will contain contradictory directions, the later codicil will override the earlier one. Finally, you can revoke a codicil by destroying it without affecting your will.
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 with a designated pay-on-death beneficiary, 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 want your son and your daughter to each receive 50% of your assets, and your will leaves your estate equally between them. Your daughter would still receive 50% of your estate assets under the will, 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 planning goals and create unnecessary animosity between your daughter and son.
How a Florida Will Attorney Can Help You With Your Will
An experienced will attorney like those at Holden, Roscow & Caedington will prepare a will for you that will stand the test of time. Specifically, we’ll create a technically sound and specific will so that everything will go where it’s supposed to go according to your wishes. We’ll help you change your will if necessary, and we’ll keep track of any codicils or new wills. We’ll avoid the common mistakes and make sure everything goes where you want it to go.
If you need help creating or changing a will, contact us. We’re invested in making sure your will is done right.