FLORIDA WILLSRequirements and

Commonly Asked Questions

1What is a last will and testament?

Often simply referred to as a will, a last will and testament is a legal document that controls how your property will be disposed of after you die.

Like all other states, Florida has its own laws that govern how Florida residents can make a will.

2WHAT DOES A WILL DO?

Wills are essential for every adult to make because they are the only

legal document that allows you to make specific types of decisions.

• Property. Through your will you can choose who inherits your property.

• Property. Through your will you can choose who inherits your property.

• Guardians.If you are a parent of minor children you can use your will to appoint a guardian who will care for them should you die.

• Property. Through your will you can choose who inherits your property.

• Guardians.If you are a parent of minor children you can use your will to appoint a guardian who will care for them should you die.

• Estate Administrator.You can select who will manage your estate by appointing someone in your will.

FLORIDA’S WILL REQUIREMENTS

3

THE STATE OF FLORIDA ALLOWS FOR ONE TYPE OF WILL, SOMETIMES CALLED AN ATTESTED WILL. State law establishes several criteria that all wills must meet before a court can determine that it is a legally valid document.

• Written. You have to make your will in writing, and you cannot make an entirely handwritten will in Florida.

• Written. You have to make your will in writing, and you cannot make an entirely handwritten will in Florida.

• Signed. Everyone making a will has to sign it, or if physically unable, direct someone else to sign on their behalf.

• Written. You have to make your will in writing, and you cannot make an entirely handwritten will in Florida.

• Signed. Everyone making a will has to sign it, or if physically unable, direct someone else to sign on their behalf.

• Witnessed. Two competent adult witnesses must see you sign your will or hear you affirm that you signed it. They must then sign as witnesses.

WILLS NOT RECOGNIZED

However, if you live in another state one of the two following types of wills may be allowed.

4While some states accept other types of wills, you cannot make anything but an attested will in Florida.

Handwritten Wills

Oral WillsA will in which you express your wishes verbally in front of witnesses.

A will you make entirely in your own handwriting.

5TESTATOR

Anyone who makes a will is known as a testator.

In the past, “testator” referred to a male making a will while “testatrix” referred to a female. Today the term testator is often used to refer to anyone who makes a will regardless of their sex.

6Testator Capacity

IN ADDITION TO THE REQUIREMENTS OF WRITING, SIGNING, AND

WITNESSING, ALL TESTATORS MUST MEET FLORIDA’S CAPACITY

REQUIREMENTS.

THE LEGAL ABILITY TO CREATE A WILL IS KNOWN AS CAPACITY.

Age. The testator must be at least 18 years old in

Florida.

Sound Mind. This means you have to know the kinds of property you own and understand how the

choices you make in your will affect that property.

7Testator Decisions

TESTATORS

HAVE A RANGE OF OPTIONS TO CHOOSE FROM WHEN MAKING THEIR

WILLS.

Not only can you choose to distribute your property, you can also choose:

Executor. After you die, a Florida probate court will have to determine if your will is valid. Through your will you can appoint someone who represents your interests during this process. This person is called an executor, or an estate administrator.

Guardian. You can also select a guardian if you have minor children. While your child’s other parent will still have parenting rights should you die, a court will have to appoint a guardian should both of you die.

When you make inheritance choices in your will, it’s always possible that the person who

stands to receive the inheritance dies before you do.

Survivorship clauses address this possibility and determine who inherits the property in such a

situation.

These are only a handful of some of the important and optional clauses your will can include.

Your lawyer will guide you through the process of selecting clauses appropriate to your situation.

A POPULAR CHOICE: NOT MAKING A WILL

8IntestacyEvery competent adult in Florida has the right to make a will. However, many people never do so.

In the situation where someone dies without a will, known as dying intestate, Florida’s laws of intestate succession determine who inherits your property.

These laws apply automatically whether you want them to or not, and the only way to avoid them is

to create a valid will.

Minor Children

It is especially important to create a will if you have minor children. If both of your child’s parents should die, a court will have to appoint a guardian. 9

If you do not have a will, the court will select whomever it believes is appropriate.

In such a situation you will have no say over who the court appoints unless you have created a will that specifically names your choice of guardian.

OTHER CONCERNS

10NOT LEAVING AN INHERITANCE

A will is not a contract, and, generally speaking, you have the

right to leave your property to whomever you wish.

HOWEVER, THERE ARE SOME EXCEPTIONS

Your Spouse.

You cannot disinherit a spouse in Florida. All spouses are entitled to receive at

least a portion of your estate even if you forget to mention the spouse in your will.

Children.

While you can disinherit an adult child by choosing not to leave the child an inheritance, Florida law does not allow you to completely disinherit a minor child.

11Making Changes

YOUR NEEDS CHANGE OVER TIME, AND YOUR WILL SHOULD REFLECT YOUR

CURRENT SITUATION.

WHEN A MAJOR LIFE EVENT TAKES PLACE YOU NEED TO CHANGE THE TERMS OF YOUR WILL OR CREATE A NEW ONE TO

REFLECT YOUR NEW SITUATION.

1. Codicil. A codicil is a written document you add to your will that changes some of its terms. Codicils must meet the same requirements

as a will in Florida.

Two Basic Ways To Change Your Will

Two Basic Ways To Change Your Will

2. Rewritten Will. If you want to make major changes it's best to

completely rewrite your will. You have the right to change your will at any time, and

you do not have to ask anyone’s permission to do so. All you have to do is make sure the will meets all Florida legal

requirements.

FINAL THOUGHTS

Too many people fail to make a will because they do not like thinking about it, they believe they will have time to do it later, or for any number of reasons.

DO NOT DELAY

CREATE YOUR WILL AS SOON AS YOU CAN SO YOU CAN HAVE PEACE OF MIND KNOWING THAT IT IS THERE WHEN IT’S NEEDED.

WILLS

ARE NOT

Advance Directives.

Wills cannot tell your doctors or family what kind of medical care you want to receive. An advance directive, such as a living will, will allow you to do this.

Powers of Attorney. A power of attorney gives someone else the ability to manage your finances or make medical decisions for you. Wills cannot do this.

Trusts.

A trust is sort of like a corporation that you create and transfer your property to. You can use a trust to distribute your property after you die, and doing so will allow your estate to effectively avoid probate.

To know more about wills and estate planning in the state of Florida,

Please visit the Estate and Medicaid Planning Information Center Port St. Lucie and Vero Beach FL

, brought to you by Robert J. Kulas Attorneys at Law.