A will is a written direction controlling the disposition of property at death. The laws of each state set the formal requirements for a legal will. In Florida, the maker of the will (testator) must be at least 18 years old, of sound mind and the will must be written. Your will must be witnessed and notarized in the special manner provided by law for wills. It is necessary to follow exactly the formalities required by Florida law for the execution of a will.
To be effective, your will must be proved valid in and allowed by the probate court. No will becomes final until the death of the testator, and it may be changed or added to by the testator by drawing a new will or by a “codicil,” which is simply a separately written 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.
Through a will, you decide who gets your property instead of the law making the choice for you.
A trust may be created in your will whereby the estate or a portion of the estate will be kept intact with income distributed to 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.
Real estate and other assets may be sold without court proceedings, if your will adequately authorizes it. You may make gifts, effective at or after your death, to charity. You decide who bears any tax burden, rather than the law making that decision.
A guardian may be named for minor children.
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 probate 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.
While any sort of property may be transferred by will, there are some particular interests in property that cannot be willed because the right of the owner terminates automatically upon 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 the right of survivorship (for example, a tenancy by the entireties, which is limited to joint ownership between a husband and wife, would be a property that automatically passes to the joint owner).
You may not disinherit your spouse without a properly executed marital agreement. The law gives a surviving spouse a choice to take either the share provided under the will or a portion of your property determined under Florida’s “elective share” statute. Also, if your will was made before the marriage and the will does not either provide for your spouse or show your intention not to provide for your spouse, 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.
Life insurance is not a substitute for a will. Life insurance is only one kind of property that you may own, and a will is necessary to dispose of other assets that you own at death.
A trust is not a substitute for a will in most cases. 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 yours 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 your name at the time of death if the will is drafted properly.
Who should prepare a will? The drafting of a will involves making decisions that require professional judgment that 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 your individual situation. In addition, an experienced 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 a “simple will.” Even smaller estates can have complexities foreseeable only by the experienced attorney.
The following additional documents 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.
• Power of attorney: This document can assist in handling your property if you become incapacitated, without having to open a guardianship proceeding in court. This is especially valuable for paying your bills and protecting your assets. A power of attorney is no longer valid or enforceable after your death.
• Health care surrogate: Florida law now allows you to designate a person to make health care decisions for you when you may not be able to do so. Included in this important appointment is the power to decide when to withdraw medical procedures.
• Pre-need guardian designation: Florida law allows you to designate a person who could be appointed guardian over you should you become incapacitated and/or over your children should you become incapacitated or upon your death. If you fail to designate a guardian, the court will do so for you if it becomes necessary.