Your Clear Intentions are Conveyed Through a Valid Will

With a properly created Will, you are able to protect your loved ones and your assets while ensuring that your final wishes are honored. A Will can accomplish the following tasks:

• Specify your wishes for distribution of any assets that are listed exclusively in your name, to your beneficiaries. This may include your bank accounts, residence, vehicles, household items, etc.; it can also include an interest in a business as well as an interest in real estate, provided none of these has a joint co-owner.
• Appoint a Personal Representative who will be responsible for managing the details of your estate, including the completion of any necessary payments to creditors, filing appropriate paperwork, and the distribution of any assets that remain after creditors are paid to the person(s) named in the Will (known as your beneficiaries). The Court will need to approve of your Personal Representative based on the laws of your State, so it is wise to list more than one person should the first be disqualified or unwilling to complete the required tasks.
• In cases where minor children are involved, testators may verify the preferred guardian(s) to whom they wish to pass along custody of their children. Although the Court will make the final decision regarding who will care for the children, the wishes of the decedent are taken into strong consideration.

Certain Properties Cannot be Distributed Through a Will

Whenever an asset is titled in more than one name, such as a husband and wife, for example, the asset automatically passes into the name of the surviving co-owner. Any asset that has been transferred into a Trust, will not be distributed through the decedent’s will, but rather will pass into the hands of the beneficiaries of the Trust. In a similar manner, designated beneficiaries of a life insurance policy or any pension or retirement funds will receive those benefits directly from the issuing company and are not affected by the contents of the decedent’s Will. It is valuable to note that if the beneficiary on any of your policies is listed as “Your Estate”, then the contents of the Trust, value of the life insurance policy, etc. will become part of the estate of your will upon your death. 

What are the Primary Benefits to Creating a Will?

In addition to conveying your final wishes regarding how and to whom your estate will be distributed, creating a Will avoids intestacy. If you die without a Will your assets will be distributed according the generic laws of the State called “intestacy laws”. These laws dictate how your assets will be distributed after you pass away and these laws do not take into account your wishes or desires, they are a rigid set of rules that must be followed by law, if there is no Will.

The entire probate process may be shortened and in many cases may not require a court appearance for any of the involved parties. Some States, such as Florida, allow testators to take an additional step and make their Wills “self-proving”, a process that eliminates the need for the Court to contact one or more of the signed witnesses on the Will, reducing time and expenses further. Another benefit for testators creating a Will (available in some states) is the option to add a “No-Contest” clause that will reduce the likelihood of any of the beneficiaries contesting the amount they are to receive from the estate. This can prevent long, drawn out legal battles and is often added with the intention of keeping the peace between family members and other beneficiaries of your estate. However, it is important to note that in Florida such a no-contest clause is unenforceable by statute.

What Does it Mean to Be Intestate?

Anyone who has died without a valid Will is considered “intestate”. In this situation, the Court handling the probate proceedings will be responsible for appointing a Personal Representative to the estate (a relative is typically preferred) and distributing the estate as required by law in whatever State the decedent last resided. The Personal Representative of an intestate case will still be responsible for paying off any debts the decedent owed to creditors, as well as any taxes and expenses incurred from the probate process, such as professional fees and court costs; what remains afterwards is distributed to the surviving spouse and/or the decedent’s children; if there is no spouse or children, then grandchildren, siblings, aunts, or uncles are next in line. 

Formalities for the Execution of a Will in Florida

Every Will must be in writing and signed by the testator (Will maker) at the end of the Will, in the presence of two attesting witnesses. The two attesting witnesses must sign the Will in the presence of the testator and in the presence of each other. A Will must be in writing that is handwritten, typed or printed. There is no specific wording that is required in Florida for the Will to be valid, but the document must provide for the disposal of assets and property.

Nuncupative Wills (oral wills) are not recognized in Florida. Holographic Wills (handwritten wills in the testator’s own handwriting and not attested by witnesses) are also not recognized in Florida.

Florida Statute 732.504 states “any person competent to be a witness may act as a witness to a will.” Although a beneficiary is allowed by law to be a witness to Will, this could create possible risks such as other beneficiaries or potential beneficiaries challenging the Will on the grounds that the interested witness may have unduly influenced the testator.

 

Why have a self – proving will?

A self-proving Will eliminates the need for attesting witnesses to testify at the time of probate as to the Will’s authenticity, proper execution that complied with Florida law is presumed with a self-proving Will. A self-proving Will is when a self-proving affidavit is attached to a Will and is signed by the testator and his or her witnesses. The self-proving affidavit is a sworn statement that attests to the validity of the Will at the time of signing. Although self-proving Wills are not required by law they are strongly recommended because self-proved Wills can be admitted to probate without the sworn testimony of the witnesses as to the Will’s execution, thereby making the process of getting a Will admitted to probate more efficient.

Testamentary Capacity for a Florida Will

The “sound mind” requirement of making 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.