No one likes to think about dying, so it’s no surprise that people tend to procrastinate when it comes to creating their last will and testament, also known as a will. But based on my 25+ years of experience as an estate planning attorney serving clients in South Florida, delaying the creation of this document is a mistake. This is true for everyone, but it’s especially the case for certain people.
A will is a legal document created while a person is alive to document how they want their assets distributed after they have died. As noted in a previous blog, crafting a valid will that accurately states your intentions doesn’t have to be an arduous task. With the guidance of an experienced will lawyer, the process can be completed in a few days or weeks, after which you have a document that honors your wishes and complies with Florida state law.
For more than a quarter of a century, The Law Office of Gary M. Landau, P.A., has been assisting clients composing wills in Florida to allocate their assets as they desire.
This blog explores three specific situations where creating a will in Florida is especially important. Continue reading to learn more, then contact us at (954) 979-6566 to schedule your free consultation by phone, in person, or by Zoom.
1. If You Want to Disinherit a Close Relative
Sometimes even the closest relationships deteriorate over time, while others never develop in the first place. This may be the case even for a very close relative–a parent, say, or a grown child. You may be estranged from these relatives and not want your assets to go to them upon your death.
If a person dies without a will, however, Florida law has a distinct process for who gets their assets, which is based on family relations. For example, say you have three grown children but are estranged from one. If you die without a will (and without a living spouse) the law treats each of these children equally and gives each a third of your estate.
When you draft your own will, however, you can choose to disinherit this relative, and the probate court will respect your wishes. The only exception is a living spouse, who is entitled to certain assets under Florida law.
2. If You Don’t Know (Or Can’t Document) That Both Your Parents Are Still Living
Sometimes situations happen where a parent is no longer in our lives. Our law firm recently had two separate cases when estranged parental relationships made probating their estate a complicated process because neither person had drafted a will before they died.
One client was sure her estranged mother was long dead as she sought to probate her brother’s estate. But when asked to produce a death certificate so the client’s probate could proceed, she discovered their mother was still living, having been committed years earlier to a mental institution. There was no will, so Florida law gave the home the brother had been living in to his mother, his closest living relative, even though the brother would no doubt have preferred the home go to his sister or other people.
In the other case, the deceased man co-owned his home in Florida with his fiancé in a form of ownership known as tenants in common. The man’s mother, who raised him in the U.S., had died years earlier, as had his father in Ukraine. But the fiancé could not get a death certificate from Ukraine to document the father’s death, which meant the deceased man’s half share of the home legally belonged to the father. Although the fiancé owned half the home, she could not obtain the clear title required to sell it. (Had they already been married this would not have been an issue, nor would it have occurred had they purchased the house in the ownership form known as “joint tenants with rights of survivorship.”)
Cases like this illustrate why drafting a valid will that leaves your assets to the beneficiaries of your choosing is especially important in this situation.
3. When You Have Minor Children
People who are young and have young children are often lulled into the belief that they are too young to die. While that’s probably true, dying without a will when you have minor children is especially problematic.
In addition to designating who receives assets, a will also allows a person to document the person they desire to serve as guardian to the children should both parents unexpectedly pass away.
Without a will, the court chooses which relative will raise the child, or it can even name a state-appointed person. This may not be the guardian you know would be best for your child.
It is always a good idea when drafting a will to name a backup guardian should the person not be in a position to take on that role at the time of your death. It is also crucial that you check with them to be sure they desire such a huge responsibility if need be.
Understanding the Requirements for a Valid Florida Will
It’s not enough to draft a will, you have to do it in a way that it is legally valid in the state where you reside. A legally valid Florida will has several specific requirements:
Age: A person must be at least 18 years old or a court-recognized emancipated minor.
Sound Mind: The person writing the will must be of “sound mind,” meaning they have a clear understanding of their assets and decisions. Florida law does not consider individuals with severe dementia or other mental impairments competent to create a will.
In Writing: A Florida will must be written.
Witnesses: A will must be signed by the testator (the person creating the will) in the presence of two competent adult witnesses, who must also sign the will. These two witnesses must not be beneficiaries. The witnesses should also witness and sign a separate document known as a self-proving affidavit that can streamline the probate process later.
Heirs: A will identifies each person you want to leave all or part of your estate to, known as an heir. A well-drafted will identifies each heir by name and specifies bequeaths and the percentage of assets you wish to leave to them. Keep in mind that Florida law ensures protection for spouses and minor children, preventing them from being completely disinherited.
Personal Representative: The personal representative (PR) is the person who oversees the probate process after your death. It is important to name a specific PR in your will. This individual should be a mentally and physically capable adult. If they reside in a different state, they must be a blood relative. It’s a good idea to have a conversation with the person you’d like to name as your personal representative first, to ensure they are willing to take on this role, and to name a backup if they predecease you.
Specific Devises: A will does not need to specifically list any of your possessions, because you can simply state the percentage of assets each heir will inherit. However, if you would like to leave something meaningful to a specific person–for example, your heirloom engagement ring to your granddaughter–you can state this in your will or, even better, include a separate attachment with these devises.
An experienced Florida estate planning attorney is best positioned to help you draft and execute a valid will that reflects your wishes.
Understanding Wills and Why Regularly Updating Your Will is Crucial
Over time, life events may require you to make adjustments to your original will. This may be due to a marriage, divorce, having children, moving to a different state, having a falling out with close relatives or friends, experiencing significant financial changes, or dealing with the death of your planned beneficiary or personal representative, among others.
It is crucial to review your will anytime you have one of these major life shifts. It is also a good idea to routinely look over your will every five to ten years to be sure it reflects your current wishes.
Do I Need an Attorney to Create a Will?
Florida law does not require that an attorney create your will. However, to be accepted by the court following your death, a will must adhere to Florida state laws. This is why it’s best to consult an experienced estate planning attorney for assistance.
It is always unfortunate when an heir comes to our office with a will that has not been properly drafted. In some cases, errors can make the will void, with the courts treating the probate as if the person had died without a will. In other cases, errors or sloppy wording make intentions unclear, or worse, might leave certain assets to people contrary to what the deceased person actually wanted.
Some companies sell do-it-yourself templates for wills online, but not all are done well and some are not crafted specifically for Florida but seem adapted from other states with different laws.
Working with a knowledgeable will lawyer with experience with the Florida probate process can help you avoid complications.
Why You Need Will Even if You Have a Living Trust
Some people have a revocable living trust that they think eliminates the need to have a will. However, this is almost never the case.
It is not uncommon for individuals over the years to neglect to transfer all of their assets into their living trust. Assets not held in the trust’s name would be subject to probate.
That is why it is important to draft a will, referred to as a “pour-over” will, even when you have or are creating a living trust. This additional legal document ensures that assets not in the trust will be distributed according to your wishes.
Wills that Florida Does Not Recognize
When drafting a will in Florida, it is important to recognize the types of wills the probate courts will not recognize:
Holographic wills: These are handwritten wills without witnesses; they don’t fulfill the legal requirement for Florida wills.
Oral wills: Wills that are simply told to another person are not valid. Even if the person hearing the bequests swear the person told them where their assets should go the probate courts will not honor this.
Certain wills drafted in other states: Florida probate courts do accept out-of-state wills if the person was a resident of that state at the time the will was drafted (and subsequently moved to Florida) and if the will complies with that state’s laws, even if they are different from Florida laws. However, wills that don’t meet these requirements will not be accepted by Florida courts.
LAW OFFICE of GARY M. LANDAU, P.A.: Your Experienced, Knowledgeable and Compassionate Will Lawyer Serving Coral Springs, Parkland, and South Florida
Have you been searching online for an “estate planning attorney near me?” for help with your Florida will and other estate planning documents? With more than 25 years of experience and countless satisfied clients, Gary M. Landau and his team are uniquely positioned to help you with your probate and real estate needs in Coral Springs, Parkland, and throughout South Florida. Whether you’re ready to probate a loved one’s estate or to write your own will, or if you are purchasing a home, have inherited a home, or want a closing agent to handle title insurance and all documents for your closing or refinancing, the LAW OFFICE OF GARY M. LANDAU, P.A. is ready to work with you.
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The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction.