A last will and testament is a crucial legal document that specifies how you want your assets distributed after you pass away. It communicates your final wishes pertaining to your possessions, finances, and dependents. Having a last will ensures that your estate is handled as you desire when you are no longer around.
Under Florida law, a last will must adhere to certain requirements to make it legally valid. This article will explain what a last will entails, the key elements involved, and how to create one in Florida.
What Exactly is a Last Will and Testament?
A last will, also known as a will or testament, is a legal document communicating your final wishes for your assets and dependents. It provides specific instructions dictating:
- Who will inherit your property, assets and personal belongings after you die
- Who should be the guardian of any minor children you have
- Who will be the executor of your estate and carry out your wishes
A last will only takes effect upon your death. As long as you are alive, you retain full control over your assets and can make changes to your will.
The person who creates a last will is called the “testator.” The individual or organization appointed in the will to oversee the testator’s estate is called the “executor.”
Having a last will and testament in place ensures that your executor and loved ones have clear guidance on how to handle your affairs when you’re gone. It helps minimize disputes between family members and ensures your final wishes are honored. A will lawyer can help determine what exactly you should include in your will or trust.
Why You Need a Last Will and Testament
There are several important reasons why every adult should have a last will and testament:
Distribute Your Assets According to Your Wishes
Without a will dictating how you want your assets divided, the state intestacy laws will determine who inherits your property. This may result in your assets going to unintended heirs rather than your chosen beneficiaries.
A will allows you to distribute your assets and possessions as you desire once you pass on. You can leave certain heirlooms or property to specific individuals, donate to charity, or set up trusts.
Appoint Guardians for Minor Children
If you have minor children and pass away without designating a guardian, the court will appoint one on your behalf. This may not be someone you would have chosen. Naming guardians in your will ensures your children are cared for by those you trust most.
Choose an Executor to Settle Your Estate
An executor is responsible for carrying out your wishes stated in the will. This includes paying debts and taxes, distributing assets to heirs, and filing court papers. Without naming one in your will, the court will appoint an administrator, potentially someone you wouldn’t have wanted in charge of your estate.
Provide Funeral and Burial Instructions
Your will can provide guidance to your loved ones on your preferred funeral arrangements and burial wishes. This includes things like cremation vs traditional burial, organ donation, and more. Specifying these details ahead of time alleviates stress for family members later.
Avoid Intestate Laws
Dying without a will means your estate will be subject to your state’s intestacy laws. These default rules may go against your wishes for distributing assets to loved ones. Having a will overrides intestate succession.
Types of Wills in Florida
There are a few different types of valid wills in Florida:
- Simple Will: A basic will is the most typical. It appoints an executor, names a guardian for minor children, and specifies beneficiaries to receive property. Simple wills must adhere to Florida requirements for a valid last will.
- Holographic Will: A holographic will is handwritten by you and signed. It doesn’t require witnesses. However, holographic wills can be contested more easily than witnessed wills.
- Nuncupative Will: A nuncupative will is an oral will spoken aloud before witnesses, then transcribed. This is only valid for personal property under $1,000.
- Self-Proving Will: A self-proving will is signed with witnesses and a notary public. This speeds up probate after death as fewer proofs are required.
- Living Trust Will: This establishes a living trust, where a trustee manages beneficiary assets. Living trusts avoid probate.
What a Last Will and Testament Allows You To Do
A last will and testament allows you to:
- Designate beneficiaries who will inherit your property
- Appoint a legal guardian for minor children
- Appoint an executor who will oversee your estate
- Make funeral and burial arrangements
- Create a testamentary trust to manage assets
- Make gifts to charities
- Disinherit certain individuals if desired
The state’s intestacy laws will decide who inherits your assets if you don’t have a legally binding last will and testament specifying what should happen to them.
Last Will and Testament Requirements in Florida
For a last will and testament to be legally binding in Florida, there are several requirements it must meet:
- Testator must be at least 18 years old
- Document must be signed by the testator
- At least two disinterested witnesses must witness signing of the will
- Testator must be of “sound mind” when signing
Is a Will Right for You?
While most adults need a last will, here are some common scenarios when having one is especially crucial:
- You Have Children: Allows you to designate guardians to care for your kids if you pass away before they turn 18.
- You Own a House or Significant Assets: Ensure your property is transferred according to your wishes.
- You Have Sentimental Possessions: Wills let you give certain heirlooms or keepsakes to loved ones you choose.
- You Have Complex Finances: Wills enable tailored estate plans for unusual assets and large estates.
- You Have No Close Family: Allows you to provide for friends, charities, etc. if you have no spouse or children.
- You Have a Blended Family: Clarify inheritance for stepchildren vs biological children to prevent disputes.
- You Own a Business: Designate successors and provide for a smooth business transition.
- You Want Certain People Excluded: Ensure certain heirs are not included in your will.
How To Write a Last Will and Testament
Follow these key steps to create your last will and testament:
- Make a list of all your assets and property
- Choose beneficiaries
- Designate a guardian for minor children
- Name an executor
- Make specific bequests
- Address remaining property with residuary clause
- Sign the document in front of two witnesses
- Store document safely
To make sure your last will and testament carries out your intentions and is legally enforceable in Florida, make sure you consult with a Coral Gables estate planning lawyer.
Key Elements to Include in Your Florida Last Will
To execute a legally binding last will in Florida, several components are required:
- Your full name and place of residence
- A statement revoking previous wills and codicils
- Declaration that this document is your last will and testament
- Clauses for distributing assets to chosen beneficiaries
- Name of guardians for minor children and any trusts
- Appointment of an executor of your estate
- Names of 2 adult witnesses who watched you sign
- Your signature and date with 2 witnesses’ signatures
Ensure your will meets all requirements under Florida probate code section 732. Consider having an attorney review it.
Consequences of Not Having a Last Will in Florida
If you pass away without a valid last will in Florida, you are said to have died “intestate.” In such cases, your estate will be distributed according to Florida’s intestate succession laws rather than your wishes.
This could mean your assets go to distant relatives you were not close to or unintended heirs instead of friends or causes you wanted to honor. The state will also decide who should care for your minor children if you did not appoint a guardian.
In addition, your loved ones will likely have to go through a prolonged probate process in court to settle your estate. The courts will appoint an administrator, who may charge higher fees than an executor you selected. Overall, not having a will creates complications, unnecessary expenses, delays, confusion, and could lead to bitter disputes among family members.
Consult Stivers Law for Your Last Will and Testament
Planning for your legacy with a last will and testament enables you to protect your loved ones, distribute your hard-earned assets as per your values, and uphold your wishes when you are gone. This is an important step to gain peace of mind.
The estate planning attorneys at Stivers Law in Coral Gables have extensive experience in will preparation and estate law in Florida. We guide you through each step with care and expertise so that your last will accurately reflects your intentions. Contact our Coral Gables office today to create an estate plan you can feel confident about.