Last Will and Testament

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Why Do I Need a Last Will and Testament?

A Florida Last Will and Testament is a formal legal document expressing your wishes about how to distribute your belongings after your death. You can make specific bequests, such as giving sentimental items to certain people; you can also donate to charity, arrange for guardianship of minor children or other dependents, and provide for the care of beloved animal companions. If you have an interest in a business, you can provide for its transfer.

If you die without a Last Will and Testament (“intestate”), everything you own will be distributed according to a strict formula set by Florida law, which may not be how you wish to leave your assets.

Also, it is complicated and time-consuming for your surviving family members to get the appropriate authorizations to access and close your accounts, turn off your utilities, and conduct other business matters related to your death. With a Last Will and Testament, you authorize someone to act as your Personal Representative, with all the authority needed to take care of these matters. They can act on your behalf without unnecessary hassle or delays.

How Do I Make a Legally Binding Last Will and Testament in Florida?

Florida law is very specific about what is required to create a legally binding Last Will and Testament. Most requirements relate to the process of signing (or “executing”) the document. Failure to follow the requirements exactly can invalidate the will. Although some states recognize a person’s handwritten wishes as a “holographic” will, Florida does not.

The Personal Representative you name in your Last Will and Testament must be either a Florida resident or your spouse, sibling, parent, child, or other close relative. If you wish, you may appoint two or more people to serve jointly.

These conditions must be met to create a valid Florida Last Will and Testament:

  • The person making the will (the “testator”) must be at least 18 years old (i.e., an adult capable of entering legal contracts).
  • The testator must be of sound mind.
  • The document must be in writing (i.e., not a video or audio recording).
  • The document must be signed by the testator or by someone else at their direction.
  • The testator’s signature must be at the end of the Last Will and Testament.
  • The testator must sign the document in the presence of two witnesses who understand and acknowledge that it is the testator’s Last Will and Testament (although they do not need to read it or know its contents).
  • The two witnesses must sign the document in the presence of the testator and the presence of each other at the same time.

Any competent person can be a witness, but it can cause problems or invite challenges during the probate process if a witness is related to the testator or to be a beneficiary of the will. The attorney who prepared the will cannot be one of the witnesses.

Although not required, it is a good idea for the witnesses and the testator to sign a self-proving affidavit along with the Last Will and Testament. This document, witnessed by a notary public, makes it unnecessary for the witnesses to personally appear in future proceedings to testify about the authenticity of the Last Will and Testament.

Are There Alternatives to a Last Will and Testament?

There are many ways to control how your property is distributed after your death. Some assets, like life insurance policy proceeds, pass directly to your chosen, named beneficiaries. Other assets, like a home you own in joint tenancy or tenancy by the entirety, legally become the property of your co-owner(s) at your death. You can also establish trusts, which directly supervise and control the distribution and ownership of certain specific assets.

These instruments all help minimize the difficulty of distributing your estate and the tax consequences for your survivors. It may be advantageous for you and your heirs to use one or more of them to pass on some or most of your assets. Even if you have these in place, however, a Last Will and Testament can be very useful. It fills in any gaps to ensure your estate is fully transferred, provides the opportunity for you to directly bequeath specific items, and, most important, appoints a Personal Representative to tie up any loose ends. A skilled attorney can advise you on how to combine these estate planning tools and maximize your legacy.

Can My Relatives Challenge My Last Will and Testament?

After a person’s death, a Florida Last Will and Testament is filed with the court by a decedent’s Personal Representative, beginning the legal proceeding called “probate.” The Personal Representative compiles the estate’s assets, pays any outstanding debts and estate expenses, and legally transfers title to the decedent’s property to the individuals and entities named in the will.

Although a person in Florida may generally dispose of their assets in any manner they wish, there are a few exceptions. The Personal Representative must satisfy the decedent’s debts before distributing any property, which may cause specific bequests to fail for lack of assets. Further, a decedent cannot bequeath property that is not transferable on death, such as a lifetime annuity or their interest in a joint tenancy. Bequests also cannot be illegal or in violation of public policy.

Children and other extended family members have no legal right to inherit property if a valid Last Will and Testament excludes them. However, a surviving spouse may challenge a will that leaves them less than the “spousal share” mandated by Florida law. Although a spouse may not be unilaterally disinherited, the spouses can mutually agree to waive one or both spouses’ rights to their spousal share. This agreement must be in writing; it is usually done through a prenuptial agreement or antenuptial agreement.

Sometimes, a decedent has children who were born after they execute a Last Will and Testament that does not mention future children. If such a “pretermitted” child proves the omission was unintentional, they may be able to recover a share of the decedent’s estate as if there was no Last Will and Testament.

A Last Will and Testament may also be challenged on the grounds the decedent was not legally capable or of sound mind when the document was made, they were under duress, or the execution of the document violated the legal requirements. These challenges must be made during Probate. They may cause some or all of the Last Will and Testament to be invalidated and the decedent’s assets distributed as if it were never written.

How Do I Change or Revoke My Last Will and Testament?

You can change or revoke your Last Will and Testament at any time. To revoke your Will, you can:

  • Destroy your old Last Will and Testament. Any amount of destruction is sufficient if you do so with the intent to revoke it.
  • Direct someone else to destroy it in your presence.
  • Create a new Last Will and Testament, which automatically revokes and overrides any previous Will.

You may also make an amendment called a “codicil” to an existing Last Will and Testament, which makes changes to the original. To be valid, a codicil must be executed with the same legal formalities as the original Last Will and Testament (i.e., in writing, signed by two witnesses, etc.).

If you wish to make specific personal bequests in your Last Will and Testament, Florida law allows you to refer to a separate list of tangible personal items (like jewelry, furniture, art pieces, collectibles, etc.). The specific items and distribution instructions need not be included in the document itself, but the Last Will and Testament must refer to a written list that describes the items and intended recipients with reasonable specificity. The list can be prepared before or after the Last Will and Testament is executed, and it can be changed at any time.

Do I Need an Attorney to Prepare a Florida Last Will and Testament?

You are not required by law to use an attorney to prepare a Florida Last Will and Testament. However, there are many compelling reasons to do so:

  • A knowledgeable estate planning attorney will review your entire financial and familial situation and help you prepare a comprehensive estate plan. You may be able to reduce your tax burden or the tax burden on your estate by using trusts, non-probate assets, planned gifts, charitable contributions, and more. An attorney will help you understand your wealth preservation and asset protection options and implement provisions to protect your estate and provide for your loved ones.
  • Using an estate planning attorney will ensure your will is drafted and executed in perfect accordance with Florida law, so it is valid, enforceable, and self-authenticating.
    An estate planning attorney can advise you on how to make beneficial changes to your estate planning as your needs and goals change throughout your lifetime and ensure they are executed correctly.
  • A complete portfolio of your estate documents will be easily and conveniently available to your loved ones after your death, reducing their stress during their time of loss. Your estate planning attorney can help them understand their responsibilities and complete the necessary steps for probate and estate administration.

The attorneys at Ginsburg Shulman, PL, have extensive experience in all aspects of estate planning. We can help you identify your estate planning priorities and match you with the legal tools to meet your goals. Regardless of your age, income, health, or financial situation, we recommend you consult with one of our attorneys about preparing a Florida Last Will and Testament. It’s not just planning—it’s peace of mind. Contact us today to set up a consultation.