Do You Have A Will - FAQ's about Florida Wills

The information in this site represents general legal information. Since the law is continually changing, some
of this information may be out of date. It is always best to consult an attorney about your legal rights and
responsibilities regarding your particular case.

WHAT IS A WILL?

A will is a written direction controlling the disposition of property at death.
The laws of each state set the formal requirements for a will. In
Florida:

1. You, the maker of the will (called the "testator"), must be at least 18
years old.

2. You must be of sound mind at the time you sign your will.

3. Your will must be written.

4. Your will must be witnessed in the special manner provided by law.

5. It is necessary to follow exactly the formalities required for the
execution of a will.

6. To take effect after your death, your will must be proved in the probate
court.

Your will does not become final until your death, and you may change
or add to it by making a new will or by a "codicil," which is simply an
addition or amendment executed with the same formalities as a will.
A will's terms cannot be changed by writing something in or crossing
something out after the will is executed. In fact, writing on your will after
its execution may invalidate part or all of it.   [Back to top of page]

WHAT CAN BE ACCOMPLISHED BY A WILL?

1. You decide who gets your property instead of the law making the
choice for you.

2. You may name the personal representative (executor) of your will as
you choose, provided the one named can qualify under Florida law. A
personal representative is one who manages an estate, and may be either
an individual or a bank or trust company, subject to certain limitations.

3. A trust may be created in a will whereby the estate or a portion of the
estate will be kept intact with income distributed or accumulated for the
benefit of members of the family or others. Minors can be cared for without
the expense of proceedings for guardianship of property.

4. Real estate and other assets may be sold without court proceedings, if
your will adequately authorizes it.

5. You may make gifts, effective at or after your death, to charity.

6. You decide who bears any tax burden, rather than the law making that
decision.

7. A guardian may be named for minor children.     [Back to top of page]

WHAT HAPPENS WHEN THERE IS NO WILL?

If you die without a will (this is called dying "intestate"), your property will
be distributed to your heirs according to a formula fixed by law. Your
property does not go to the State of Florida unless there are absolutely no
heirs at law, which is very unlikely. In other words, if you fail to make a
will, the inheritance statute determines who gets your property. The
inheritance statute contains a rigid formula and makes no exception for
those in unusual need.

When there is no will, the court appoints a personal representative, known
or unknown to you, to manage your estate. The cost of probating may be
greater than if you had planned your estate with a will, and the
administration of your estate may be subject to greater court supervision.    [Back to top of page]

MAY A PERSON DISPOSE OF HIS OR HER PROPERTY IN
ANY WAY HE OR SHE WISHES BY A WILL?

While any sort of property may be transferred by will, 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 a 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).

A person may not disinherit his or her spouse without a properly executed
marital agreement. The law gives a surviving spouse a choice to take
either his or her share under the will or a portion of the decedent's property
determined under Florida's "elective share" statute. This 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
property, life insurance, and other non-probate assets. Because this
formula is very complicated, it is usually necessary to refer this matter to
an attorney with extensive experience in this area of 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 estate as if you had died
without a will (at least one-half of your estate) unless provision for the
spouse was made or waived in a marital agreement.     [Back to top of page]

MUST A PARENT LEAVE AT LEAST ONE DOLLAR TO A CHILD?

No. This is not necessary and can actually cause considerable added
expense to the estate. It is better simply to state in the will that no
provision is being made for that child.     [Back to top of page]

HOW LONG IS A WILL GOOD?

It is "good" until it is changed or revoked in the manner required by 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 in the
required manner. 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 a
careful analysis and reconsideration of all the provisions of your will and
may make it advisable to change the will to conform to the new situation.

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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 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 inheritance statute. Thus, even if you have no will,
your heirs must go to court to administer your estate, obtain an order
determining your legal heirs, or obtain a determination that 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 administration process.

Click here for more information about probate in Florida.

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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.

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.      [Back to top of page]

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, the 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 may be directed by the will. 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 a lawyer, a life insurance counselor, and a financial advisor.
Mistakes in ownership and beneficiary designations in these policies can
cause great increases in estate taxes owed.      [Back to top of page]

IS A LIVING TRUST A SUBSTITUTE FOR A WILL?

No, in most situations. A 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. 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 will that
controls all property in a decedent's name at the time of death if the will is
drafted properly. 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 will that can
clear creditors' claims, which is not possible with just a trust
administration.     [Back to top of page]

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 court to procure a probate
order and administer estates. In most counties, neither the estate attorney
nor the interested persons ever appear in the courtroom.

Click here for more information about probate in Florida.

[Back to top of page]

CAN A WILL REDUCE 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. Although the estate tax is currently
scheduled to decrease gradually and then be repealed in the coming
years, it still can be a major expense of a decedent's estate in the interim.
There is also the possibility that Congress may increase the impact of the
estate tax in the future. In addition, proper planning must be made for
income tax advantages. Proper planning with a will is indispensable in
taking these benefits in the tax codes. [Back to top of page]

WHO SHOULD PREPARE A WILL?

No sensible person would employ "just anyone" to fill teeth, take out an
appendix, or deliver a baby. 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 an
experienced lawyer. Except in dire emergency, these important tasks should
not be performed by anyone except the attorney.

The drafting of a will involves making decisions that require professional
judgment which can be obtained only by years of training, experience, and
study. Only the practicing lawyer can avoid the innumerable pitfalls and
advise the course best suited for each individual situation. In addition, an
experienced attorney will be able to coordinate the use of other skilled
professionals, such as an investment advisor, actuary, insurance
specialist, and tax accountant to complete a proper estate plan.

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SOME SUGGESTIONS CONCERNING WILLS

1. Marriage does not cancel a will in Florida, but a spouse acquired after
the execution of a will may receive the same portion of your estate that he
or she would have received had you died without a will (at least one-half).

2. If you have moved to Florida from another state, it is wise to have your
will reviewed by a Florida 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.

3. Before your will is effective to dispose of your property, it must be
proved in the 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 court for that purpose. (Under
certain circumstances, the 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.

4. 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
may be entirely void. Be sure that you execute your will in the presence of
your attorney, who knows exactly how and in what order the will should be
signed.

5. Every person owning property who wishes to exercise control in the
disposition of that property when he or she dies, should have a will
regardless of the value of the property. Of course, the larger the estate the
greater the tax consequences.

6. The following additional estate planning documents should be considered for signing
when you make your will:

• Living Will - Florida Statutes allow you to make a written declaration
specifying directions as to use of life-prolonging procedures. If you do not
want your life to be artificially prolonged, you should have a Living Will.

• Durable Power of Attorney - This document can assist in handling the
property of a person who has become incapacitated without having to open
a guardianship proceeding in court. This is especially valuable for paying
the bills and protecting the assets of an incapacitated person.

• 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 important appointment is the power
to decide when to withdraw medical procedures.

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