Last Will and Testament (Will)
What most people think about when they think of estate planning is creating a last will and testament, often just called a will. A will is one of the most important estate planning documents, as it is how you specify who you want to receive your property when you pass away. In your will you also nominate your personal representative, who is the person who will administer your estate—settling debts and distributing assets to loved ones—and make sure your wishes are carried out. Florida has strict requirements about who can serve as your personal representative, and it is always a good idea to name a successor in case the initial person is unable or unwilling to serve (learn more about personal representatives below).
A will only dictates what happens with assets that go through a court process called probate (learn more about probate). Assets that have beneficiary designations, such as bank accounts, brokerage accounts, and retirement accounts, and assets held in trust, will pass outside of probate, so your will does not control what happens with these unless your listed beneficiaries die before you or you never list a beneficiary in the first place.
Read below to learn about some of the many things to consider when drafting a will to make sure that your wishes are followed and you are not setting loved ones up for easily avoided hurdles. For
Considerations for Your Will
Testamentary Trusts
Wills can be simple, where you give all of your property to a small group of people without restrictions, or they can be more complex and involve testamentary trusts, which are trusts that are only created through your will and do not begin until you pass away and your estate goes through probate.
These types of trusts may be useful if you are concerned about leaving money outright to a young person or other family member who may not have the maturity to manage money or other property. Also, some types of trusts, like qualified special needs trusts—special trusts to prevent a spouse from losing means-tested government benefits like Medicaid—can only be created under a will.
Guardianships for Children
In a will, parents of young children can designate a guardian for their children in the event they pass away before their children reach adulthood. This can help prevent a court battle in which multiple relatives argue over who should serve as a child’s guardian, especially when not all relatives get along.
Property Passing to a Minor
Many people may not understand the added headache they may create for their family by not considering the possibility a child may receive property from their estate. In Florida, if a minor receives $15,000 or more from an inheritance, a guardianship will need to be established to protect the funds until the child turns 18, at which time they will be able to fully access the property. This is a potentially expensive and time-consuming process that is easily avoided by setting up a trust in your will that is only created if someone under an age you determine receives property.
Quick Facts About Wills
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A testator or testatrix is the person whose will it is. A testator is male and a testatrix is female.
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A will takes effect after the testator/trix dies and the will is admitted to probate.
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Your personal representative is the person who will administer your estate—settling your debts and distributing your assets to loved ones—after you pass. While you can nominate a personal representative in your will, they must be appointed by the court before they can act. Learn more about who can serve as a personal representative.
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Yes, there is no legal requirement in Florida that an attorney drafts your will. However, Florida has strict rules that need to be followed when drafting and executing a will and if these are not followed, Florida law says the will is invalid. With very limited exceptions, Florida does not acknowledge holographic wills (wills without witnesses, usually handwritten by the testator) and nuncupative wills (oral wills), even if validly created in a different state.
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In order to create a Florida will, you must be at least 18 years old, have the capacity to understand what you are doing, and be aware of who your closest relations are.
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Florida has very strict formalities that must be followed when executing a will:
The will must be in writing.
The will must be signed at the end by the testator.
The testator must either sign the will in front of two witnesses or acknowledge before two witnesses that he previously signed it.
The witnesses must sign the will in the presence of both the testator and the other witness.
If the formalities are not strictly followed, the entire will is invalid.
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Unfortunately, you cannot just pencil in changes you would like to make to your will. Instead, you will need to execute a codicil, which is an amendment to a will and used for more minor changes. If you want to make significant changes to your will, or if you have already executed multiple codicils, it may be a better idea to execute an entirely new will that revokes the previous will and codicils. This will help consolidate any previous changes and simplify probate since the court will only have to look at one document.
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There are two ways to revoke a will or codicil:
Execute a new will that states any previous wills and codicils are revoked and only the terms of the new will should be followed; or
Either the testator himself burns, tears, cancels, defaces, obliterates, or destroys the will with the intent to revoke it, or another person does it at the testator’s direction and in the testator’s presence.
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A pour-over will is executed in conjunction with a trust and “pours over” all of the decedent’s assets into the trust. The purpose of this type of will is to make sure that if the decedent forgot to put an asset into their trust during their lifetime–or if an asset was acquired after the decedent died, like the proceeds from a lawsuit–the asset will then be accounted for and put into the trust to be administered per the terms of the trust.
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No, a testamentary trust is one created in a will. So, in order to take effect, the will needs to be probated.
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Yes, since a testamentary trust only takes effect after you die, it is irrevocable.
Schedule a Free Consultation
To get help drafting a will that is tailored to your needs, schedule a free consultation with a last will and testament attorney near you.