A Last Will and Testament (often referred to as a “will”) should be included in every estate plan. A will details the disposition of your estate upon your death. Most people understand the basic need for a will, especially since the most recent (and unfortunate) death of the Artist Formerly Known as Prince; however, like Prince, the majority of Americans do not have a will.
Terms and Definitions: A testator is the individual who creates a will disposing of his or her estate. A personal representative is the individual designated to administer the testator’s estate. A preneed guardian is the individual nominated to care for the testator’s minor children. The term issue refers to all of an individual’s lineal descendants of all generations and includes children, grandchildren, and more remote descendants. The terms bequest or devise refers to the gifting of property to an individual in a will. The residuary estate is the property remaining in an estate after the payment of all debts, taxes, and other expenses and the distribution of all bequests and devises.
Legal Requirements of a Valid Will: Under Florida law, in order for a will to be valid, it must be in writing and signed (or acknowledged) at the end of the document by the testator in the presence of two witnesses who must be in the presence of the testator and in the presence of each other when signing. This means a nuncupative will (an oral will) is not valid in Florida and a holographic will (an entirely handwritten will) is only valid if it is properly executed under Florida law. [1] A will that is executed by a nonresident of Florida is valid in Florida if the will was valid under the laws of the state or country where it was executed.
Essential Will Provisions: A will can be simple or complex based on your assets, debts, and specific wishes. Regardless of how intricate your estate may be, your will must, at the very least, designate a personal representative to administer your estate and name beneficiaries to receive your probate estate. If your will designates a personal representative and disposes of your entire probate estate, your will controls over the default provisions provided by Florida law.
If you do not have a will, or if your will is invalid or otherwise fails in some way, your personal representative and beneficiaries of your estate will be designated by the provisions of Florida law. Your probate estate will be distributed according to Florida’s intestate laws. Sadly, this means that your “little red corvette” may pass to the cousin you have never met.
Your will should dispose of your tangible, personal property upon your death. You can dispose of such property within your will by including specific devises of items to specific individuals. You can also dispose of such property by referencing a separate writing within your will that lists specific individuals to receive specific items upon your death.
The disposition of your residuary estate (as defined above) should be included in your will. You can dispose of your residuary estate outright to an individual or individuals, or create a testamentary trust upon your death under your will. In the alternative, if you create a revocable trust during your lifetime, your will would normally provide that any remaining assets of your estate are to pour over into your trust and be disposed of in accordance with the provisions set forth therein.
You can include burial instructions in your will. If you wish to be cremated, your will should specifically mention cremation to protect your personal representative who will be relaying on that instruction. You can also exercise power of appointments in your will. If you have a minor child or children, you should name a preneed guardian (as defined above) in your will. A court is not required to follow your nomination of the preneed guardian; however, it creates a rebuttable presumption of qualification under Florida law.
A will is the backbone of estate planning. If you do not have a will, or if you wish to update your will so that it complies with the legal requirements of a valid will and disposes of your probate estate entirely, please contact our office.