All About Wills
The Coleman Law Firm, PLLC, has more than 30 years’ experience providing wills-based estate planning. We have provided literally thousands of wills in Florida. The proper preparation of a last will and testament in Florida requires knowledge of Florida’s wills statute, the Florida intestacy statute and the Florida probate code. You can count on our estate planning law firm to provide you with responsive service at reasonable legal fees.
The following information is designed to provide you with general knowledge of wills, help you develop a basic understanding of how wills work and what is necessary to have a valid will. Though there are many sources on the internet or otherwise to find do-it-yourself wills, we strongly encourage you to work with an experienced estate planning attorney to help you develop an estate plan that is designed specifically for you and your family circumstances. There are many statutes and cases that impact wills and estate planning. A proven estate planning attorney can help you avoid some of the pitfalls of do-it-yourself planning, and help you ensure that your estate plan is properly designed and implemented for the best results for you and your loved ones.
If you need a lawyer (in Jacksonville or the Beaches, Orange Park, St. Augustine, Ponte Vedra Beach, Amelia Island or Fernandina Beach) call us toll-free at (866) 510-9099 or in Jacksonville at 904-448-1969, or email us.
Frequently Asked Questions About Wills In Florida
WHAT IS A LAST WILL AND TESTAMENT?
A last will and testament is a written legal document providing direction for controlling the disposition of your property at your death. The laws of wills and trusts for each state set the formal requirements for making a legal will. Under Florida law to make a legal will:
a. You, the maker of the last will and testament in Florida (called the testator), must be at least 18 years old.
b. You must be of sound mind at the time you sign your last will and testament in Florida.
c. Your last will and testament must be written.
d. Your will must be witnessed and notarized in the special manner provided by Florida law for wills.
e. Under Florida law it is necessary to follow exactly the formalities required for the signing of a will when you make a will. A Florida estate planning lawyer or Jacksonville wills attorney can assist you with ensuring that the formalities required by Florida wills law for making a valid last will and testament are properly followed.
f. To be effective, when you make a will, your will must be proved in and allowed by the Florida probate court. A “self-proved” will allows the Florida probate court to immediately allow the will’s admission into probate.
No last will and testament in Florida becomes final until the death of the testator, and it may be changed or added to by the testator by creating a new will or by a “codicil,” which is simply an addition or amendment executed with the same legal formalities as a last will and testament. A will’s terms cannot be changed by writing something in or crossing something out after the will is executed. In fact, under Florida probate law, writing on the will after its execution may invalidate part of the will or all of it.
HOW CAN AN ESTATE PLAN MAKE THINGS EASIER ON MY FAMILY WHEN I DIE?
a. When you make a will, you decide who gets your property instead of the Florida intestacy law making the choice for you.
b. You may name the personal representative (executor) of your will as you choose, provided the person or institution you have named can qualify under Florida wills and trusts law. A personal representative is one who manages a probate estate, and maybe either an individual or a bank or trust company, subject to certain limitations.
c. A testamentary trust may be created when writing your last will and testament whereby the probate estate or a portion of the probate estate will be kept intact with income distributed or accumulated for the benefit of members of the family or other beneficiaries. An attorney can show you how to draft a will to include a testamentary trust. Assets left to minors (under 18 years of age) can be cared for without the expense of proceedings in probate court for supervised guardianship of property of a minor child.
d. Real estate and other probate assets may be sold without probate court approval, if your last will and testament adequately authorizes it.
e. You may make gifts, effective at or after your death, to charity.
f. You decide who bears any tax burden, rather than the Florida probate law making that decision for you.
g. When you make a will, a Florida guardian may be named for your minor children, rather than leaving that decision up to the probate judge to make, or having family members fight over who will be your children’s guardian.
WHAT HAPPENS WHEN THERE IS NO LAST WILL AND TESTAMENT?
If you die without a will document (this is called dying “intestate”), your property will be distributed to your heirs according to a formula fixed by Florida intestacy law. Your property does not go to the state of Florida unless there are absolutely no intestate heirs at law, which is very unlikely. In other words, if you fail to make a will, the Florida intestate inheritance statute determines who gets your property. The Florida intestate inheritance statute contains a rigid formula and makes no exception for those in unusual need.
When there is no will, the Florida probate court appoints a personal representative, known or unknown to you, to manage your Florida probate estate. The costs of probate may be greater than if you had planned your estate by making a last will and testament, and the administration of your probate estate may be subject to greater probate court supervision.
MUST A PERSON LEAVE A CHILD AT LEAST ONE DOLLAR?
No. This is not necessary and can actually cause considerable added expense to the probate estate. It is better simply to state in the will writing that no provision is being made for that child. An experienced wills attorney can help you add the appropriate language to minimize the potential for such a person successfully challenging your last will and testament.
HOW LONG IS A LAST WILL AND TESTAMENT GOOD?
It is “good” until it is changed or revoked in the manner required by Florida wills and trusts law. Your will may be changed as often as you desire while you are sane and not under undue influence, duress or fraud, provided it is changed with the formal legal requirements. Changes in circumstances after the execution of the will, such as tax law amendments, deaths, marriage, divorce, birth of children, or even a substantial change in the nature or amount of your estate, may raise questions as to the adequacy of your will. All changes require careful analysis and reconsideration of all the provisions of your will and may make it advisable to make a will to conform to the new situation. The help of a qualified, experienced Jacksonville wills attorney or estate planning lawyer will ensure that the changes you want are properly made so that those changes will be accomplished.
DOES A WILL INCREASE PROBATE EXPENSES?
No. If there is property to be administered or taxes to be paid or both, the existence of a will does not increase probate expenses. A will frequently reduces expenses. If there is real or personal property to be transferred at your death, the Florida probate court will have jurisdiction to ensure that it is transferred properly, either according to your will, or, if there is no will, in accordance with the Florida inheritance statute. Thus, even if you have no will, your heirs must retain a Florida probate lawyer and go to Florida probate court to administer your probate estate, obtain an order determining your legal heirs or obtain a determination that probate administration is unnecessary. These procedures are often more expensive than administering your will, since a properly drawn will names the beneficiaries and delineates procedures to simplify the Florida probate administration process. To avoid probate in Florida, a properly funded revocable living trust can be used. To determine what is best for you and your circumstances, you should consult with an experienced Jacksonville wills attorney.
MAY A PERSON DISPOSE OF HIS OR HER PROPERTY IN ANY WAY HE OR SHE WISHES BY MAKING A WILL?
While any sort of property may be transferred by writing a last will and testament, there are some particular interests in property which cannot be willed because the right of the owner terminates automatically upon his or her death, or others have been granted rights in the property by Florida law. Some examples of these types of property rights or interests are:
- Except in certain very specific circumstances an exempt Florida homestead (that is, the residence and adjoining lands owned by a person who is survived by a spouse or minor child, up to one-half acre within limits of an incorporated city or town or up to 160 acres outside those limits)
- A life estate: property owned only for the life of the owner
- Any property owned jointly with another person or persons with right of survivorship (a tenancy by the entireties, which is limited to joint ownership between a husband and wife, would be one of these, as would a tenancy in common, and a joint tenancy with right of survivorship)
It is critically important to understand that property owned jointly with others, including your spouse, and those assets with beneficiary designations, will flow to the joint owner or the beneficiary automatically, through the operation of law, and you cannot change those after death. Joint ownership and beneficiary designations are simple to use and very effective. However, using such measures to transfer assets at death can lead to unexpected results.
Planning must be undertaken to deal with such transfers to minor children who cannot own property (resulting in a court supervised guardianship for the property of the minor child). What happens to the asset if the named beneficiary predeceases you? What happens if the beneficiary is going through a divorce at the time of your death? What happens if the joint owner or the named beneficiary is incapacitated at the time of your death? A careful analysis of your circumstance by our Jacksonville will attorney can help you avoid the potential pitfalls of using beneficiary designations and joint ownership of property.
MUST I LEAVE SOMETHING TO MY SPOUSE AND CHILDREN IN MY WILL?
A person may not disinherit his or her spouse by making a will, without a properly executed premarital or post-marital agreement. Florida probate law gives a surviving spouse a choice to take either his or her share under the last will and testament or a portion of the decedent’s property determined under Florida’s “elective share” statute. This Florida statute uses a formula to compute the size of the surviving spouse’s elective share, which includes amounts stemming from the decedent’s jointly held and trust-owned property, life insurance and other nonprobate assets. Because this formula is very complicated, it is usually necessary to refer this matter to a Florida estate planning attorney or a Florida probate lawyer with extensive experience in this area of Florida probate law. Also, if your will was made before the marriage and the will does not either provide for the spouse or show your intention not to provide for him or her, then your spouse would receive the same share of your probate estate as if you had died with no will (at least one-half of your estate) unless provision for the spouse was made or waived in a premarital or post-marital agreement.
ARE ESTATES BY ENTIRETIES OR JOINT TENANCY WITH RIGHT OF SURVIVORSHIP SUBSTITUTES FOR A WILL?
Joint tenancies with rights of survivorship can be established when two or more persons title bank accounts and other assets in their multiple names with the intent to have ownership pass directly to the surviving named owners when one dies. A “tenancy by the entireties” is much the same but involves only married persons. These forms of joint ownership can avoid probate of the account or other asset when an owner dies. While this can be very efficient in some cases, use of joint ownership can be fraught with problems at death and cause more problems than it solves. First, you should realize that joint titling only potentially avoids probate at the first owner’s death. Probate will be necessary when the survivor dies.
Among other unforeseen problems, indiscriminate use of joint ownership can cause an increase in estate taxes over the joint lives of married persons, force double probates in the event of simultaneous deaths, create unfairness as to who pays for funeral expenses and claims against the decedent, raise undesired exposure during life to the debts of co-owners, and cause a shortage of funds for payment of estate taxes which can cause litigation with the taxing authorities.
Before relying on the use of joint tenancy with right of survivorship to avoid Florida probate, you should consult an experienced Florida estate planning attorney to determine whether there are any problems or issues that may impact your estate planning or probate administration that are caused by the use of the joint tenancy form of ownership.
IS A LIFE INSURANCE PROGRAM A SUBSTITUTE FOR A WILL?
No. Life insurance is only one kind of property that a person may own and a will is necessary to dispose of other assets that a person owns at death. If a life insurance policy is payable to an individual named beneficiary, the last will of the insured has no effect on the proceeds. If the policy is payable to the estate of the insured, the disposition of the proceeds maybe directed by the will, and the life insurance proceeds that otherwise might be exempt from creditors’ claims will be subjected to those claims. Life insurance can be useful in providing cash at death for payment of taxes and expenses, but like most strategies for insurance, the careful person will consult an experienced Florida estate planning lawyer, a life insurance counselor, and a financial adviser. Mistakes in ownership and beneficiary designations in these policies, or in beneficiary designations for retirement plans and IRAs, can cause great increase in intestate taxes owed, or potentially the entire asset. With proper estate planning, you can avoid estate taxes on life insurance proceeds through the use of a life insurance trust, no matter what the value of your estate maybe.
IS A TRUST A SUBSTITUTE FOR A WILL?
No, in most situations. A revocable living trust may be used in addition to a will. This is because a trust can handle only the property that has been put into it by retitling the asset to the trust. Any property of a person that is not placed in the trust either during life or at death in most instances escapes the control of the trust. It is the last will and testament that controls all property in a decedent’s name at the time of death if the will is drafted properly. Revocable living trusts can be helpful to speed administration and save taxes if they are drafted properly and funded during life with the property intended to be transferred by the trust. Often, however, improperly drafted or incorrectly funded or administered trusts can add to the cost of settling estates, not lower it. Furthermore, it is the probate of the last will and testament that can clear creditors’ claims, which is not possible with just a trust administration.
DO YOU HAVE TO GO TO COURT TO PROBATE A WILL?
No, personal court appearances are usually not needed to probate a will. However, documents must be filed with the probate court to procure a probate order and administer estates. In most counties, neither the estate’s Florida probate attorney nor the interested persons ever appear in the courtroom.
CAN A WILL REDUCE ESTATE TAXES?
A well-drawn will can reduce estate and income taxes that may arise when someone dies. Estate taxes are often by far the largest cash expense an estate can have. There is also the possibility that Congress may increase the impact of the estate tax in the future. In addition, proper estate tax planning must be made for income tax advantages. Proper estate planning with a will is indispensable in taking these benefits in the tax codes. An experienced Florida estate planning lawyer or attorney can help you ensure that you take advantage of all the tax planning options that are available to you when you make a will.
WHO SHOULD PREPARE A WILL?
No sensible person would employ “just anyone” to fill teeth, take out an appendix or deliver a baby. Though you can find free legal will forms online, the person who wants these services performed skillfully with the minimum risk to health, life, property, or the accurate execution of his or her wishes, will engage the services of a trained and experienced estate planning attorney. Except in dire emergency, drafting wills and codicils should not be performed by anyone except the experienced professional estate planning or wills and trusts lawyer. When you make a will with a free legal will form, or a will form from an online source, you often create more problems than would be present if you had no will.
Will drafting involves making decisions that require professional judgment which can be obtained only by years of training, experience and study. Only the practicing Florida estate planning or wills and trusts lawyer can avoid the innumerable pitfalls and advise the course best suited for each individual situation. In addition, an experienced Florida estate planning attorney will be able to coordinate the use of other skilled professionals, such as an investment adviser, actuary, insurance specialist and tax accountant to complete a proper estate plan. Moreover, there is no such thing as making a “simple will.” Even smaller estates can have complexities only foreseeable by the experienced Florida estate planning attorney
SOME SUGGESTIONS CONCERNING WILLS
a. Marriage does not cancel a will in Florida, but a spouse from a marriage that occurs after the execution of a will may receive the same portion of your estate that he or she would have received had you died with no will (at least one-half).
b. If you have moved to Florida from another state, it is wise to have your last will and testament reviewed by a Florida estate planning lawyer in order to be sure that it is properly executed according to the laws of Florida, that the witnesses are readily available to prove your will in Florida, and that your personal representative is qualified to serve in Florida.
c. Before your will is effective to dispose of your property, it must be proved in the Florida probate court. If the will is self-proving and otherwise valid, it may be admitted to probate without further proof. If the will is not self-proving, it generally must be proved by the oath of one of the witnesses. The oath must be given before a circuit judge, clerk of court or a commissioner specially appointed by the probate court for that purpose. (Under certain circumstances, the probate court may permit the will to be proved by other means permitted by law.) A will can be made self-proving either at the time of its execution or later, which saves the time and expense of locating a witness and obtaining his or her oath after your death. For your will to be made self-proving, you must acknowledge the will before an officer authorized to administer oaths; the witnesses must make affidavits before the officer; and the officer must evidence the acknowledgment and affidavits by a certificate attached to or following the will. An appropriate form of certificate is prescribed by Florida law. The self-proving procedure is in addition to the normal execution and witnessing of the will, not in place of it.
d. No matter how perfect a will may be prepared for you, unless it is properly executed in strict compliance with the laws of Florida, the will maybe entirely void. Be sure that you execute your will in the presence of your wills and trust attorney, who knows exactly how and in what order the will should be signed.
e. Every person owning property who wishes to exercise control in the disposition of that property when he or she dies, should make a will regardless of the value of the property. Of course, the larger the estate the greater the estate tax consequences and therefore the more important effective estate planning becomes.
f. The following additional legal documents and forms should be considered for signing when you make your will:
• Living Will: Florida statutes now provide for a written declaration by an individual specifying directions as to use of life-prolonging procedures and end of life decisions. Though there is a statutory form for this document, your estate planning lawyer can help you determine whether to provide for additional directions and guidance beyond what is included in the statutory form.
WHAT IS “POWER OF ATTORNEY”?
- Durable Power of Attorney: A durable power of attorney is a legal document that can assist in handling the property and financial affairs of a person who has become incapacitated without having to open a guardianship proceeding in probate court. This is especially valuable for paying the bills and protecting the assets of an incapacitated person. Like other estate planning documents, the durable power of attorney should be drafted by your estate planning lawyer so that the document accomplishes your objectives, and protects you at the same time. When consulting with your estate planning lawyer, be sure to explore the difference between the immediate power of attorney that takes effect immediately upon you signing it and delivering it to your attorney in fact, and the springing power of attorney that does not become effective until a defined event, such as your incapacity.
- Health Care Surrogate: Florida law now allows individuals to designate a person to make health care decisions for them when the individual may not be able to do so. Included in this power of attorney for health care or designation of health care surrogate, is the power to decide when to withdraw medical procedures and treatments.
- Pre-Need Guardian Designation: Florida law allows you to designate a person, or people, who could be appointed legal guardian over your person or your property, or both, should you become incapacitated, or over your children should you become incapacitated and upon your death. If you fail to designate a guardian, the Probate Court will do so for you, if and when it becomes necessary.