Frequently Asked Legal Questions About Wills & Probate Law in Florida

 

Can I Modify/Amend My Will?

Yes, you can modify a will after it has been created. In fact, there is even a special term used to describe will amendments: codicil. A codicil can be used to add new provisions to a will, modify existing provisions, or substitute a new provision for one that is currently in place. Codicils must be executed in the same manner as the original will, meaning it requires witnesses and sometimes notarization (varies depending on your respective state of residence).

How Many People Actually Create Wills?

The short answer: more than you probably think. According to a document published by the Federal Reserve Bank of Chicago, “Will Writing and Bequest Motives: Early 20th Century Irish Evidence,” between 30-50% of US adults write wills before they die. There is a good reason for this trend. Having a will ensures your property is passed down and distributed according to your wishes. Without a will in place, the probate court will have the ultimate say over who receives your property.

What is the Difference Between a Living Will and Last Will and Testament?

A last will and testament is used to express how you would like your estate handled after you die and it does not take effect until your passing. For instance, the person creating the will (known as the testator), may specify his or her daughter as the beneficiary of their home. When the testator dies, the home will be passed to the testator’s daughter. A living will, on the other hand, provides instructions regarding your preferences for medical care if you are unable to make decisions for yourself such as whether or not you wish to remain on life support. Living wills take effect while the testator is still alive.

Do I Have to Hire a Lawyer to Create My Will?

Contrary to what some people may believe, there is no law stating that a will must be created by a lawyer. Many people choose to write their own wills to save money. Doing so, however, may cause some problems later down the road. The testator, for instance, may lack the necessary expertise in estate planning to correct technical deficiencies and execution errors; thus, making the will void. Allowing a lawyer to handle your will’s creation reduces the risk of error, ensuring your wishes are carried out the way you want them to.

Who can make a will?

Florida Statue 732.501 states that, “any person who is of sound mind and who is either 18 or more years of age or an emancipated minor may make a will”. In this statement, to execute a valid will, the testator (will maker) must be of “sound mind” which has been described as having the ability to mentally understand in a general way (1) the nature and extent of the property to be disposed of, (2) the testator’s relation to those who would naturally claim a substantial benefit from his will (natural objects of his or her bounty), and (3) a general understanding of the practical effect of the will as executed. Raimi v. Furlong, 702 So.2d 1286 (Fla. Dist.Ct.App. 1997). A person’s mental capacity to make a will is determined by their mental capacity at the time the will was executed. There must be sufficient evidence to show that the will was executed during a lucid interval.

Do Wills Go Through Probate Court?

Yes, wills go through the probate court. After the testator dies, the probate court may be initiated to determine the validity of the will. If the testator failed to create his or her will according to state law, it could be deemed invalid, at which point the court will have to decide how to distribute the estate in question. If you wish to bypass the probate court with your estate planning, it’s recommended that you use a trust instead of a will.