FAMILY ESTATE PLANNING

Protecting Your Assets And Your Legacy

LAST WILL AND TESTAMENT

A Last Will and Testament is an important estate planning tool that is written to ensure that your last wishes are properly documented while you are alive and then specifically followed after your death. The person creating the Last Will and Testament is called a "testator" (if male) or "testatrix" (if female), and referred to as a "decedent" after their death.

It is important to understand that a Last Will and Testament does not become active until AFTER the testator's death. This is a big difference from a Living Trust, which becomes active while the creator of the trust is alive, and remains active during the creator's incapacitation and stays active after the creator's death. Because of this, a Last Will and Testament does not provide directions to your loved ones in the event you are alive but incapacitated and/or unable to communicate your wishes.

Benefits of a Will

A Last Will and Testament can be used for various purposes, the most common of which is to: (i) pass on the testator's assets and belongings, such as money, real estate and personal property, to their family or loved ones, or (ii) donate property and money to their favorite charity. A Last Will and Testament may also be used by the testator to set up a trust to provide long-term asset management and protection and to name the legal guardian of any minor children.

A benefit of creating a Last Will and Testament is that the testator can choose whom will serve as the person responsible for carrying out the testator's wishes contained in the will, so long as the person chosen is eligible under Florida law. This person is called the "executor" or "personal representative" of the decedent's estate. Without naming a personal representative, the decedent's family and loved ones would be involved in an unavoidable court battle to be appointed to this role. Oftentimes, the court will name its own personal representative (or "curator") if the decedent's family cannot decide among themselves. Obviously, this is not what any reasonable person would wish for their family after they pass.

Requirements of a Will

Florida laws are strict when it comes to the formality of wills and other estate planning documents. Foremost, Florida laws require a Last Will and Testament to be in writing. In addition, a Last Will and Testament must be signed by the testator at the end of the document.

The testator must sign the document in the presence of at least two (2) witnesses, and these two witnesses must sign in each other's presence and in the presence of the testator. A notary is not required, so long as the will is properly signed and witnessed.

While a will in Florida may be handwritten, it must meet the signature and witness requirements above. There are other specific requirements required to be included for a Last Will and Testament to be deemed valid in Florida. Because of the strict compliance requirements in Florida, anyone wanting to put together a proper estate plan should hire an experienced estate planning attorney to assist them with the drafting and execution of their Last Will and Testament.

Florida Wills Must Go Through Probate

It should be noted that having only a Last Will and Testament in Florida, as opposed to a Living Trust, will require the decedent's estate to pass through the Florida courts in a process called "probate" before a personal representative is confirmed or appointed and any distributions are made to any beneficiary. Put simply, probate is the court supervised process of distributing the estate of a deceased person.

The probate process in Florida can be lengthy and costly, depending on the size of the decedent's estate and the validity of the decedent's estate planning documents. In addition, when an estate passes through probate, all of the decedent's last wishes and assets will become public information, notifying creditors of the decedent and delaying the distribution of assets to beneficiaries. Nevertheless, probate may be preferred when a decedent's estate is smaller in size, or for other strategic purposes.

Passing Away Without a Will

A Last Will and Testament is not required in Florida. If someone passes away without a will, or a written will is deemed invalid by the probate court, Florida law (called the laws of intestacy) will determine how a decedent's estate will be distributed after their death. This can be a problem for the decedent's intended beneficiaries, because Florida's law of intestacy may not coincide with the decedent's ultimate last wishes. This is why it is important for every Florida adult to have, at minimum, a properly drafted Last Will and Testament in place before their death.

Click here to learn more about Florida's probate process.

If you have any questions about a Last Will and Testament in Florida, or any other estate planning tools, please contact me today!