Practice Areas • Estate Planning

Florida Last Will & Testament

Drafting a Last Will and Testament is by the far the primary legal instrument to every estate plan in the State of Florida. It is the document that details the distribution of all your property both real and personal upon death.

In Florida, the individual who is creating the will is called the Testator. A Florida Will Testament is a legal device that allows you to choose who will get each asset. For example, you may wish to bequeath (distribute) your house to your surviving spouse and your personal property to your minor children and have certain funds set aside to pay for funeral expenses. 

Additionally, you may choose to leave certain assets to charitable organizations. Another great attribute of a Florida Will is the appointment of a Personal Representative (also called Executor in other jurisdictions), this is an individual of your choice who will be responsible for distributing the assets according to the instructions that you leave behind in your Last Will and Testament. All wills must be proved in court during probate. 

Probate is the court process where all property, both real and personal, are distributed. Creditors both known and unknown must be notified at this time and creditors claims must be submitted during the probate process. A Florida Last Will and Testament by itself does not avoid probate. 

In addition, to be admitted to probate it must be proved as valid. If a Will is not self-proving the personal representative must prove to the Court that the Will was in fact drafted by the Decedent and the contents of the will were the Testator’s Intent. To avoid this process, and to get the will to be automatically admitted into the Court, the Testator should sign a self-proving affidavit. 

A Florida Last Will and Testament may be revoked at any time by the Testator. The testator may revoke a will either by burning, tearing, canceling, defacing, obliterating, or destroying it with the intent to revoke.

Florida Last Will and Testament v. Florida Living Will

Many individuals confuse a Last Will and Testament with a Florida Living Will. A Living Will is one the several ancillary legal documents which is also referred to in Florida as the Florida Advanced Healthcare Directives. Others include Durable Power of Attorney and Healthcare Surrogate. These documents provide instructions for incapacitation and other situations that arise when you are alive but unable to make decisions for yourself. 

When drafting a Last Will and Testament in Florida there are certain formalities required. The Testator (creator) must be at least 18 years of age and be of sound mind. In addition a will must be signed by the Testator or by another in the presence of the testator and in the presence of two subscribing witnesses. Both the Testator and the witnesses must sign the Will in accordance with state law.

Who Needs a Last Will and Testament in Florida?

Everyone should draft a will, especially those with minor children. Failure to have a will could result in the courts, in accordance with state law, appointing guardians for your children. The last thing an individual wants is the State to appoint a guardian for their child. 

In addition, A Florida Last Will and Testament should be created for anyone who owns any amount of assets. Even if you have a small estate it can still serve a purpose. Failure to have a valid Florida will force your assets to be distributed according to the state in which you reside. 

Florida Intestate laws will determine how your assets will be distributed to any heirs that are alive after your death. 

Testamentary Trusts: What are they and How are they worked into a Florida Will?

Individuals may want to hire a Florida Estate Planning Attorney and elect to set up a testamentary trust to protect assets that are named for the benefit of children or other individuals who need someone to assist with management. 

The trusts are set up within the Last Will and Testament and they spring into life upon death of the Testator. These Testamentary trusts are recommended for beneficiaries that are disabled, very young in age who are not old enough to manage funds on their own, and animals who need a caretaker.

See also: Planning With Florida Trusts

Florida Homestead Restrictions on Devise and “Elective-Share”

When making a will in Florida individuals should know that although most assets can be devised through a Last Will and Testament, there are a few exceptions. Some exceptions to keep in mind when making a personal will are the Florida Homestead laws. 

Florida homestead laws prevent those who are legally married from devising their primary residence. Their legal spouse is entitled to receive a life estate in their home. In addition, those individuals that wish to disinherit their spouse may run into a problem. 

Florida law allows a disinherited spouse to claim their “elective share” which will entitle them to a portion of the decedent’s estate. Those individuals that seek to create a Will through looking for a do it yourself Florida Will Form need to keep these exceptions in mind. 

We also encourage that you seek the advice from a Florida Estate Planning Attorney before attempting to do it yourself and fill in a simple will form.

Contesting a Florida Last Will and Testament

A Florida will can be contested or challenged so long as the statute of limitations are not exceeded. Some ways to contest a Florida Last Will and Testament can be for forgery or duress, lack of testamentary intent (lack of capacity), and for undue influence. 

It is important to remember that Attested Wills, which are those wills written and signed by the testator in the presence of two witnesses are the only wills that are valid in Florida. Florida does not recognize Holographic Wills and Oral Wills. Last Wills and Testaments that are properly executed in other jurisdictions may be recognized in Florida.

Miami Estate Planning Attorney

Polidoro Law can assist in making your Last Will and Testament and Ancillary Documents including your Florida Advanced Healthcare Directives.

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