Florida Wills | Estate Planning | The Law Office of Jordan W. Jacob

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Last Will and Testament.

Put Your Last Wishes in Writing.

Florida Wills are an important estate planning tool to ensure that your last wishes are properly documented while you are alive and then specifically followed after your death.

The person creating a Will is called a “settlor”, or “testator” (if male) or “testatrix” (if female), and referred to as a “decedent” after their death.

It is important to understand that a Will does not become active until AFTER the creator of the Will passes away. This is a big difference from a Florida living trust, which becomes active while the creator of the trust is alive, remains active during the creator’s incapacitation, and stays active after the creator’s death.

Because of this, Florida Wills do not provide directions to your loved ones in the event you are alive but incapacitated and/or unable to communicate your wishes.

Stick writes his Florida Last Will and Testament_Florida-Wills
Stick writes his Florida Last Will and Testament_Florida-Wills

Florida Wills are an important estate planning tool to ensure that your last wishes are properly documented while you are alive and then specifically followed after your death.

The person creating a Will is called a “settlor”, or “testator” (if male) or “testatrix” (if female), and referred to as a “decedent” after their death.

It is important to understand that a Will does not become active until AFTER the creator of the Will passes away. This is a big difference from a Florida living trust, which becomes active while the creator of the trust is alive, remains active during the creator’s incapacitation, and stays active after the creator’s death.

Because of this, Florida Wills do not provide directions to your loved ones in the event you are alive but incapacitated and/or unable to communicate your wishes.

Benefits of Florida Wills

Florida Wills can be used for various purposes, the most common of which is to:

(i) pass on the settlor’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 the settlor’s favorite charity.

A Will may also be used by the settlor 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 Florida Will is that the testator can choose whom will serve as the person responsible for carrying out the testator’s wishes, 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. If the settlor’s family cannot decide amongst themselves, the court will name its own personal representative (or “curator”). Obviously, this is not what any reasonable person would wish for their family after they pass.

Requirements of Florida Wills

Florida laws are strict when it comes to the formality of estate planning documents. Foremost, Florida Wills are required to be in writing. In addition, Florida Wills must be signed by the settlor at the end of the document.

The settlor must sign the document in the presence of at least two (2) witnesses who are not related to the settlor, and these two witnesses must sign in each other’s presence and in the presence of the settlor. A notary is not required, so long as the Will is properly signed and witnessed. However, it is highly recommended that Florida Wills be notarized.

While Florida Wills may be handwritten, rather than typed, they must meet the signature and witness requirements above. There are other specific requirements required to be included for Florida Wills to be deemed valid.

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 Will.

Florida Wills Must Go Through Probate

It should be noted that having only a Florida Will, as opposed to a Living Trust, will require the settlor’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 settlor’s estate and the validity of the settlor’s estate planning documents. In addition, when an estate passes through probate, all of the settlor’s last wishes and assets will become public information, notifying creditors of the settlor’s death 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 Will 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 probate.

Stick looks at a skull
Stick looks at a skull

Passing Away Without a Will

A Will 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 probate.

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From Jordan W. Jacob, Esq. to Everyone: 03:05 AM