Understanding various terms used when planning for end-of-life documents can be confusing. This is especially the case because the names for several estate planning documents sound similar. Nowhere is this confusion more rife than in understanding the difference between living wills and wills in Florida.
This blog describes the basics of both these documents. We discuss making wills and living wills so they comply with specific laws in the state, especially so the former can be properly recognized by Florida probate courts. And we describe how important it is that you make informed decisions about your own end-of-life plans, free from undue influence from relatives or friends.
Both wills and living wills are documents specific to Florida law, so the information here only pertains to residents of Florida.
Read on for valuable insights from an experienced Florida attorney about how properly drafting Florida wills and living wills will give you peace of mind now—and help your loved ones deal with your estate years down the road. To schedule a free consultation, call us at (954) 979-6566.
Estate Planning: The Basics of Protecting Your Estate’s Assets
When you begin your estate planning–which nearly everyone should do, regardless of the value of your assets or your family situation–most people start with a written will. This document, more formally known as a Last Will and Testament, comprehensively states your wishes for asset distribution after death.
Another document that must be created according to Florida law is the living will, also known as an advanced healthcare directive.
A living will is used by your relatives and medical personnel while you are still alive but are unable to convey your own wishes. By contrast, a will goes into effect after your death and is used by the Florida probate court to determine how to distribute your assets..
A Florida estate planning lawyer can help you with drafting wills, a process that includes appointing a personal representative, as well as living wills and other important documents, ensuring that all comply with state laws.
Wills vs. Living Wills: What’s the Difference?
The will is the written document explaining how you want your assets distributed after your death. When properly executed, wills help your family understand your wishes and prevent the courts from distributing your money and real estate according to state formulas rather than what you would want.
A Florida will designates a personal representative, which is the individual tasked with managing the estate of the deceased person, known in probate lingo as the decedent.
Florida wills can also include provisions for the guardianship of minor children–in other words, who will raise your underage children if something happens to both their parents. Each spouse in a married couple must have their own will.
What Florida Law Requires for a Valid Will
Florida has several requirements to establish a legally valid will that ensures the decedent’s property and assets can be distributed according to the person’s wishes.
- Age: The person writing the will, known as a testator, must be at least 18 years old or be a court-recognized emancipated minor.
- Sound Mind: The testator must be a competent person of sound mind, meaning they understand the nature of their assets and the implications of their decisions. Someone with severe dementia, for example, is not capable of drafting a will.
- In Writing: For a will to be valid in Florida, it must be written. Florida does not recognize oral wills.
- Personal Representative: The testator must name a personal representative who will deal with the probate process after the testator’s death. This person needs to be a mentally and physically capable adult. If the person lives in another state, they must be a blood relative. It is a good idea to ask someone if they want to be your PR before you name them in a will.
- Witnesses: A will must be signed by the testator in the presence of two competent witnesses, who also sign the will. Wills don’t need to be notarized to be legally valid, but if they are notarized the probate process will be quicker and easier.
The Importance of a Last Will and Testament
Wills play an important part in an estate plan:
- Asset Distribution: A Florida will lets you designate who you want your money and property to go to. (Most wills don’t list specific amounts, but rather the percentage of the assets each beneficiary will get.)
- Naming a Guardian: If you have minor children or someone with a severe disability, the will enables you to designate a guardian who will care for them after your death, such as a close relative, other living relatives, or someone else whom you trust.
- Avoiding Distribution Per State Law: According to state law, the distribution of assets of someone who dies without a valid will (in legal jargon, they died intestate) is determined by a formula known as intestate succession (e.g., assets go to a spouse first, then living children if there is no spouse, parents if there are no children…) This distribution may not reflect your desires.
Regular Review and Updates
Change is an inevitable part of life, and some of these changes necessitate updates to your existing will, or even the creation of a new will. These circumstances, including marriage, divorce, the birth of children or grandchildren, changed state of residence, significant changes in your financial situation, the death of your planned PR or a beneficiary, or other factors, can necessitate updates to your original will.
This is why it’s important to dust off your will every five to ten years–or after one of these major events–to make sure it remains current.
Potential Legal Hurdles
It is important that your will be properly drafted in compliance with Florida laws, so your designated heirs don’t run into legal hurdles upon your death. Problems may include having the court toss a will as invalid or subjecting the surviving spouse or other loved ones to acrimonious lawsuits between them.
A legally binding will may also save time and money during the probate proceedings, ensuring a smoother transmission of your assets.
By seeking the assistance of an experienced wills and trusts attorney when you create or update your will, you can feel confident that your will meets all Florida legal requirements.
The document known as a living will is one that codifies your desire for or against heroic medical interventions if you are unable to make decisions because you are incapacitated. Signing a living will that indicates you do not want these interventions if there is no hope for recovery may keep you from being put on months or years of life support when you are not really alive.
This document is brought by relatives to your physician, who will note it in your chart.
A living will is typically drafted by an attorney at the same time as a will and other end-of-life documents, also including a healthcare power of attorney that designates someone to make basic healthcare decisions on your behalf.
Under Florida law, a living will must be signed by two witnesses (one of whom is not a spouse or blood relative) but it does not need to be notarized.
The Difference Between a Will and a Living Will in a Nutshell
A will designates asset distribution according to your wishes, ensuring that you, rather than the probate court, will determine who gets what. A will takes effect only after your death and has no bearing on healthcare decisions made during your lifetime.
A living will allows you to maintain control over your healthcare wishes at the end of your life when you are totally incapacitated. It instructs medical professionals whether you want to be put on life support or have other heroic measures taken to sustain your life when there is no chance of recovery. Signing a living will alleviates the burden on your loved ones who might otherwise have to make this difficult decision on your behalf.
Choosing the Right Document
If you have substantial assets, property, and/or minor children, a will is crucial. If you have strong feelings about your end-of-life care, you also need a living will.
Most people require both a will and a living will. An experienced estate attorney will draft both documents as part of your estate plans.
Of course, experienced attorneys know that everyone’s situation is unique. That’s why it’s important to consult an estate lawyer to discuss your specific needs under Florida law.
One More Document to Consider
The Law Office of Gary M. Landau has created a free, unique end-of-life document for everyone to set down their desires for the psychological and emotional aspects near the end of their life.
Called “My Last Emotional Wishes,” the free four-page form is available to download from the attorney’s home page (scroll to the bottom) This form takes the guesswork from struggling family and friends about what you might want during your last months, days, and hours.
Note that this is not a legally binding form and does not replace your will, living will or healthcare power of attorney. But, along with all those documents, it provides for a more comprehensive end of life plan.
LAW OFFICE OF GARY M. LANDAU, P.A.
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 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.