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What is a Last Will and Testament?

In Florida, a last will and testament is a legal document that details a person's final wishes about their assets. It outlines how they'd like their estate to be divided. It also mentions who they'd like to give the asset to. For instance, the testator may leave the property to heirs. Alternatively, authors may decide to commit all their estate to a charity. Having a last will and testament is crucial, as individuals who pass away without one are considered to have died intestate. In such scenarios, Florida's Intestate Succession laws will affect how the property will be divided (Fla. Stat. § 732.101-.109).

For a will to be considered valid in the Sunshine State, it must be witnessed and signed by at least two parties. Wills may also include a sworn statement (self-proving affidavit) that attests to the document's validity. Although this isn't a legal requirement, having one can help expedite the probate process. Florida residents can make self-proving wills by signing an affidavit at the notary, confirming the identity of the signatories, and attesting to the testator's state of mind.

Last Will and Testament vs Living Will: What’s the difference?

A last will and testament is a legal document people create specifying how assets should be divided in the event of their passing. Such documents include the names of beneficiaries and may assign a guardian for minor children. In contrast, a living will is a document that dictates the writer's medical wishes if he or she cannot communicate the decision. Living wills may include details for life support, organ donation, or vegetative state decisions.

Who Can Make a Last Will and Testament in Florida?

Anyone can make a last will and testament in Florida if they meet the state requirements. Under Florida laws, the following rules must be met (Fla. Stat. § 732.501 (2023).

  1. The author must be 18 or older.
  2. Authors must also be of sound mind.

Note: To "be of sound mind" means that the testator must have enough mental capacity to form rational thoughts and judgments. A will may be considered invalid if an individual does not meet these requirements.

Why Would You Need a Last Will and Testament in Florida?

Having a last will and testament in place is a smart choice. Some benefits of creating a lasting will and testament in Florida include the following:

  • Authors can name a Guardian for children/wards With a last will and testament. Authors can choose a guardian tasked with caring for and overseeing their children or wards. Authors can also provide funds for the children and specify how these are to be used.
  • Specify Recipients: Having a last will and testament ensures that assets and property go to specific people. Testators can specify who they would like to benefit from their estate and the amount or percentage of the distribution.
  • Removes the risk of disputes: Having your final wishes in writing reduces the risk of family disputes. You can choose an executor to handle the administration of your estate and the execution of your wishes. In addition to property division, you can dictate other wishes, such as burial arrangements.

Potential risks of not having a Last Will and Testament

In contrast, not having a last will and testament could have downsides, the most direct of which is that the children or grandchildren may not get your desired protection. Instead of a designated executor, asset division may be managed by a state-appointed executor. In addition, assets will be distributed in accordance with Florida law.

If a person dies without a will and no family, his or her property, assets, and estate escheats and becomes the state's property. Under Florida statutes, property that escheats is generally sold off, and the proceeds are paid to the Chief Financial Officer. However, in the event that the deceased has family, Florida's intestacy laws provide rules on how the estate must be divided. For instance, if a party dies with only a surviving spouse and no kids, the surviving spouse inherits everything (Fla. Stat. § 732.102 (2023)). A similar decision applies to cases where a person dies with children but no spouse. In such events, the kids inherit everything.

Some examples of situations where a Last Will and Testament can be useful include:

  • Protecting unmarried partners: A last will and testament can be used to make provisions for a partner in an unmarried relationship.
  • Making donations to charitable organizations: Authors who wish to donate parts of their estate to one or more charities can do so using a Will and testaments.
  • Burial or funeral instructions: Specific details about a burial or funeral arrangements can be made using a Will
  • Designating a guardian for minor children
  • Settlement of debt: Wills can be used to assist with debt resolution
  • Succession of business: Authors can leave business to specific parties to smoothen the ownership transition process.

When does Your Last Will and Testament take effect in Florida?

A last will and testament becomes effective after it is introduced to the probate court and confirmed by the judge as valid. How long this takes will depend on multiple factors, such as the size of the estate and if the will is being contested. Generally, the probate process can run from one to three months for simple estates and over two years for larger, more complex estates.

However, regardless of how long the probate action takes, individuals in charge of the will must file for probate no later than ten days after the author passes.

How to Create a Last Will and Testament in Florida

Florida statutes provide guidelines for creating a valid will and testament. This includes provisions for the testator, witnesses, and any legal representative. Some of these include:

  • Only an adult may make a last will and testament. (Fla. Stat. § 732.501 (2023).) This means the person making the will must be at least 18. The testator must also have the mental capacity to make the decision.
  • A last will and testament must be in writing. Florida law does not recognize the validity of nuncupative (oral) wills spoken to witnesses. The testator's wishes must be in writing.
  • A last will and testament must be signed: Wills must be signed by the testator at the end of the document.
  • A last will and testament must be witnessed and co-signed. For a will to be valid, it must be signed by two witnesses. All parties must be present simultaneously, including the testator and witnesses. Florida has no specific laws on who may serve as witnesses. Wills can be witnessed and signed by relatives, friends, or employees. Individuals who stand to gain from the wills may also act as witnesses, but this is sometimes avoided to avoid the appearance of undue influence.

The fees and costs associated with creating a last will and testament in Florida vary on a case-by-case basis. Some of the factors that may affect the eventual cost include:

  • Notary and witness fees
  • Cost of legal consultation
  • Cost of preparing documents
  • Cost of legal reviews
  • Executor fees (if applicable)
  • Safekeeping fees (if applicable)

Preparing a Last Will and Testament: How to Write One in Florida

To ensure effectiveness and validity, certain provisions must be included when preparing a last will and testament. While circumstances understandably vary, a Last Will and Testament form should ideally include the following fields.

  • The author's full legal name and address at the time of the will's creation
  • A statement that revokes a prior will (if any exists)
  • A formal appointment of an executor who will be managing the estate
  • An alternate executor if the primary executor is unable or unwilling to serve
  • Names of beneficiaries. Wills may also include relationships (e.g., my son, Damon)
  • Specific details of how the testator's assets will be distributed to beneficiaries (e.g., I leave my boat to my daughter, Diana)
  • Appointment of guardians for minor children
  • Signature of two witnesses who were present when the author signed the will
  • Notarization of the will

Depending on the author, a will may include information about a trust established to manage specified assets or finances for specific beneficiaries. A will may also include nominating a trustee to monitor the trust assets. Other optional fields that may be added to a will include:

  • Instructions for pet care
  • Specific conditions that may affect the heir's inheritance (e.g., the beneficiary must meet a certain age or attain a certain educational goal)
  • Details for accessing or managing digital assets (such as social media accounts and online accounts)

What Shouldn't Be Included in a Will?

Generally, funeral details, such as a preference for cremation or burial, the dress code for the funeral, or instructions for funeral expenses, shouldn't be included in a will. Although it is possible to include burial or funeral instructions in a will, it is better to communicate such preferences directly to the family members in a separate document. That's because a will may sometimes not be read until after the funeral. In addition, funeral wishes are generally not legally binding and can be overturned by the family.

Some useful tips for completing a Last Will and Testament form

  • Gather the necessary information: Collect all relevant information, such as the full name of beneficiaries and details of existing assets.
  • Keep the language clear and specific.
  • Name an executor who will be responsible for carrying out the wishes.
  • Consider legal advice if you're unclear.

How Often Must I Update My Last Will and Testament?

There is no fixed rule on when to update a will. However, most legal professionals recommend that authors review their plans every three to five years. Testators in Florida have different options for amending or updating a will.

One option is to create a new will in which the writer revokes all previous wills. If a testator chooses this option, he or she must ensure that the new will meets the state requirements for validity. For instance, the new will must be signed and witnessed by two parties in the presence of each other. The writer must also be of sound mind at the time of the creation.

Another way of updating a last will and testament is to use a codicil.

A codicil is a legal document providing instructions for modifying an existing will. It can be used for a variety of reasons, including:

  • Adding more beneficiaries who weren't covered in an original will.
  • Altering the distribution or division of assets.
  • Revoking a will.
  • Alter or increase specific provisions of a will.

The legal requirements of a codicil are similar to those of a will; namely, the author must be of sound mind and cognizant of the implications. Codicils must also be in writing and witnessed by two parties. The wording must also clearly indicate the intent with language such as "I hereby amend my last Will and testament dated on the…".

Do I Need a Lawyer to Create a Last Will and Testament in Florida?

No, you do not need an attorney to make a last will and testament in Florida. Under Florida law, anybody over 18 can make a will as long as it is written, signed, and witnessed by two adults. However, some parties may prefer to seek the advice of an attorney when drafting their will. This is often done to remove any legal bases on which the will could be disputed.

Working with a lawyer can also be beneficial if you have complex family dynamics or a large estate. Other reasons some people may consider working with a lawyer include probate and tax considerations: An attorney can help minimize probate costs and advise on strategies to reduce the tax burden on beneficiaries.

What’s the Difference between a Last Will and Testament, a Living Trust, and a Medical Power of Attorney?

A last will and testament is a legal document in which people outline how they would like their estate to be managed and distributed after death. However, the stipulations in the document only become active after the author (testator) passes away. In contrast, a medical power of attorney is a legal document wherein the author appoints a healthcare proxy responsible for making medical decisions on the patient's behalf if the patient cannot.

A living trust is similar to a last will and testament. Like a will, it provides instructions for what happens to the author's assets when they die. However, unlike a will, a living trust can also be used to manage assets while the author is alive. Persons who create a living trust entrust the oversight and management of their assets to a trustee. Some examples of assets that can be added to a living trust include bank accounts, insurance policies, real estate, and stocks.

Aspect Last Will and Testament Living Trust Medical Power of Attorney
Legal Purpose Distribute assets after death Manage assets during and after life. Make healthcare decisions if incapacitated
When It Takes Effect After the person's death During the person's lifetime When the person is incapacitated
Modifiability Can be modified or revoked during life Can be modified or revoked during life Ends upon death or revocation
Probate Involvement Typically subject to probate Assets in the trust bypass probate Not related to probate
Asset Management Does not manage assets during life Manages assets during life Does not manage assets
Executor/Appointee Appoints an executor to carry out the terms The trustee manages assets per trust terms Appoints a healthcare agent
Privacy Becomes public record during probate Generally private Generally private
Applicability Addresses asset distribution and guardianship Manages assets and avoids probate Makes healthcare decisions
Use Case Estate planning, asset distribution Asset management, probate avoidance Healthcare decision-making

Can a Last Will and Testament Be Challenged in Florida?

In Florida, wills can generally be challenged at any point before the probate process is completed. However, challenges must be filed before the deadline expires. Challenges must also be made on legal grounds and by parties with the right legal standing.

Legal grounds for challenging a Last Will and Testament in Florida

Some of the legal grounds under which parties may contest a will and testament in Florida include:

  • Improper execution: For a will to be considered valid in Florida, it needs to be executed by a person older than 18. The will must also be witnessed and signed by at least two people in the presence of each other.
  • Undue Influence: Wills are sometimes challenged on the grounds of undue influence. Challenges argue that the author (testator) was unduly pressured, coerced, or manipulated into modifying the will to suit a beneficiary at the detriment of others.
  • Lack of sound mind or mental capacity: The will can be challenged on the grounds that the testator lacked the right mental capacity to create it. Legal arguments may be made that the author wasn't aware of his/her decisions or the impact of what they were about to do.

Who Has Standing to Contest a Will?

In Florida, wills can only be contested by parties with legal standing, such as the following:

  • Beneficiaries of the current will: Parties named in the will can contest a will.
  • Parties named in a previous will. Persons named in a previous will can challenge more recent wills if the terms are altered. For instance, beneficiaries of an older will may contest a new will if it reduces their share of assets or replaces them with a new beneficiary.
  • Heirs-at-law. Heirs-at-law are persons with the right of inheritance to property under Florida laws. Under Florida intestate succession laws, such persons include the surviving spouse, children, grandchildren, parents, and other descendants.
  • Creditors: Creditors who believe they have a valid claim to the testator's estate may challenge the will to collect outstanding debts.

Procedures for Challenging a Last Will and Testament in Florida

While the specifics of challenging a last will and testament generally vary, most cases follow the same procedure.

  • Consultation with an attorney: Parties who wish to challenge a will often begin by consulting with an experienced attorney to identify and determine the legal grounds that could be used for the challenge (e.g., fraud or improper execution).
  • File a Contest within the right time limit: Wills can only be contested within a fixed window. Beyond this period, the challenge process becomes a lot more difficult or impossible.
  • Submit a petition at the probate court: Contesters must file a legal petition that includes the grounds for the challenge. Petitions may also include supported evidence and the requested relief.
  • Notify all interested Parties: After filing a petition, notice is sent to all parties connected to the will, such as the heirs and beneficiaries, so that they can respond.

In some cases, challenges are resolved through mediation or settlement negotiations. However, the court decides the case if mediation cannot achieve a resolution. Court hearings typically involve the presentation of evidence, witnesses, and the submission of arguments by both sides. The court then issues a judgment on the distribution of assets.

How long do You Have to Contest a Will in Florida?

Under Florida law, parties who wish to contest a will must file a formal lawsuit no later than 90 days after the Notice of Administration is filed (section 733.212(3)). After this period, challenges are barred by the state, and the will is executed. Sometimes, the deadline for submitting a challenge may be extended. However, such extensions are rare and only granted under exceptional circumstances.

Note: The Notice of Administration is a formal document that notifies everyone of the decedent's passing and the subsequent filing of their last will and testament. Such documents typically contain the decedent's name, date of death, probate court case number, and the name and contact details of the executor appointed by the court. Documents may also mention a time period within which challenges must be filed.

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