Roughly 50% of the population in the state of Florida do not have a Will created and most do not fully understand the importance of creating a Will for themselves and their families. One of the most important factors with creating a Will is to protect your loved ones from having to tackle a long probate case for the distributions of your belongings if anything were to happen to you or your family member. Although obtaining a Will does not specifically avoid your family members from having to open a probate, it does help smooth the probate process dramatically if there already is a written Will. Young parents with minor children should also heavily consider having a will created in the event anything should happen to them. It is of high importance to have a written document designating any guardians that would take care of their minor children instead of leaving it up to the state to decide. Having a Will created is certainly vital for anyone to look into over the age of 18, not just for individuals nearing retirement.
What exactly is a Will?
A Will, which is also referred to as a Last Will or a Testament, is a legal document that communicates an individual’s specific wishes for the distributions of their remaining belongings if anything were to happen to them. These belongings are referred legally as assets. Assets may include any type of bank accounts you may have, property that is listed under your name, stocks, bonds, as well as any type of physical possessions you may want to include in your Will. Specific guardian(s) may also be appointed on a Will if an individual has any minor children. The fact is the older any individual gets; the more assets or belongings may be listed under their names.
A Will generally will include the following:
- An appointed executor also known as a personal representative – an individual who is named in the Will as an executor will make sure to fulfill the exact directions and requests contained in the Will
- Beneficiaries – individual(s) who will be inheriting the specific assets (belongings)
- Guardians – individuals who are appointed care of any minor children
- Specific instructions for the appointed executor regarding how the assets are to be distributed to the beneficiaries are also included in the Will
Wills may be replaced or altered at any given time throughout your life. These legal documents may change if there are any major life changes in a person’s life (marriage, birth of a child, new property, etc). It is generally a good idea for one to review their Will every two to three years to be safe.
How do I create a valid Will in the state of Florida?
It is important for anyone over the age of 18 to begin taking inventory of their assets. This includes any personal items, homes, or physical property that has been acquired under their name. It is important to keep in mind that in the state of Florida there are a few exceptions with the distributions of properties in a Will.
If there is a property that is jointly owned, meaning you and another individual’s name are on the property, a “right of survivorship” is followed according to Florida law. This means if anything were to happen to you, the other individual would obtain automatic possession of the property due to the “right of survivorship”. This may also include any joint savings or checking accounts where you and another individual obtain ownership over.
Another exception to keep in mind is that in Florida the surviving spouse would also obtain full ownership of a family homestead. A homestead may be a house or land owned by a family which the ownership would automatically be distributed to the surviving spouse or children upon the decedent’s death.
A life estate, which is known as property owned only for the life of the owner, may not be included in a Will in the state of Florida.
If a Will was created prior to a marriage, the surviving spouse may receive up to one half of the benefits of the assets in the state of Florida under an “elective share” statute. This can occur if there was not a properly executed marital agreement created waiving the surviving spouse from obtaining the assets. A surviving spouse’s “elective share” statute may allow the state to calculate the size of your trust property, life insurance, as well as other assets. An individual may not disinherit their spouse from their Will without a properly executed marital agreement. This is why it is important to review your Will again after any major life changes occur throughout your life – such as marriages.
It is important to take note of these exceptions as well as entrusting your information with an attorney within the state of Florida in order to make sure that your Will has been properly created. Your Will may be entirely voided if it is not executed properly according to the state of Florida’s laws and exceptions.
What are my next steps to properly create a valid Will?
There are a few requirements you may follow to properly ensure that a valid Will has been executed in the state of Florida.
1. The individual MUST be over the age of 18 to proceed with creating a Will.
2. It is important that the individual is mentally capable of making the decisions and reasoning whenever the Will is signed.
3. The generated Will must be signed by the testator (or individual the will is created for). The Will may be signed by another person; however, it must be under the presence of the testator.
4. There MUST be two witnesses present at the signing of the Will in the state of Florida. The Will may not be valid if there are no competent witnesses.
5. The Will MUST be written to be valid in the state of Florida - holographic or oral wills are not accepted.
Although there are many sources on the internet stating that you would be able to have a Will created within a few hours or days, the reality is that you may spend money on those internet sources creating an invalid Will. There are also many individual state laws that have to be followed, especially if you are looking to create a valid Will in the state of Florida. The best recommendation is to reach out to an estate planning attorney to ensure that you will create a valid Will that conforms to all of the state’s requirements as well as your wishes. Creating a Will is important to ensure that your loved ones are properly taken care of should anything ever happen to you.
You may begin thinking about who you would like to appoint as your executor(s) (aka Personal Representative) to execute the wishes and demands listed in your Will. An executor must be anyone over the age of 18 who does not necessarily have to be a family member, although most prefer choosing a spouse or a close relative. Executors may also be a bank or a trust company. You must notify that you have appointed the individual(s) to be the executor of your Will. It is important to also review your Will if the appointed executor(s) has deceased, and a new executor(s) would have to be appointed.
It is also important to keep in mind who you want to choose as your beneficiaries, the individual(s) who you want to inherit your assets after your death. It’s vital to take note at any time in your life who you would want your belongings to go to if anything were to happen to you. Your beneficiaries may include your spouse, children, or trusted relatives and friends.
Another important factor especially for younger parents to begin planning is who they would want appointed as guardian(s) for their minor children. Selecting a guardian(s) for your minor child(ren) helps you stay rest assured that the state will not be involved with making the decisions for who the caregivers of your children will be if anything were to happen to you.
It is key to involve clear and precise directions in your Will to ensure that the executor(s) are able to follow through according to your wishes. This may include specifying the name(s) of the beneficiaries who would be inheriting specific items or assets. This could avoid potential conflicts among your loved ones dealing with the items after your passing.
Any Will is known in the state of Florida as invalid if they do not accurately comply with the law’s regulations and exemptions. It is always recommended to first approach and schedule a time to speak with an estate planning attorney in the state of Florida who obtains all of the knowledge and resources to ensure that your Will is recognized as valid in the state of Florida as well as answering all of the questions you may obtain regarding your Will. Our attorneys at The Probate Law Firm help ensure the process for your Will is thorough according to your wishes and recognized as valid within the courts of Florida. Give us a call today at, (305) 456-3255, to schedule a consultation with one of our attorneys to get started drafting and planning your Will!