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Understanding Florida's Laws on a Last Will and Testament

When a person dies intestate, that means she or he died without a will. When a person dies without a will in Florida, the laws of intestacy, governed by Florida's Probate Code, Chapter 732, typically control the estate, including dictating who gets what. Most of us want to do the dictating ourselves, so having a will – which is governed by the same Chapter 732, is an essential element of anyone's Florida estate plan. 

At Veliz Katz Law, we know how important wills, among other estate planning tools are. We listen to our clients. We advise them on their best options as if we were advising our own family members. We draft wills in accordance with their wishes and the law. Contact us if you want to make sure you have a say in what happens to your assets and property upon your death. 

What is a Last Will and Testament?

 A last will and testament, mostly referred simply as a will, is a document that outlines what you want to happen upon your death. A will answers questions like:

  • Who gets what property?
  • Who gets financial accounts?
  • Who gets personal property?
  • Who gets any pets?
  • Who will care for any minor children?
  • Who will administer the estate?

The above are just examples of what a will outlines. In Florida, Chapter 732, governs wills and intestate succession.

What Can a Will Do for People in Florida?

To better understand a will, it makes sense to understand what it can actually do for you, which means understanding how a will answers the above-listed questions. A few of the most significant things a will does for the testator – the person making the will – are described below.

Explain Where Your Assets Go Upon Your Death

You have things – tangible and intangible things. These "things" do not disappear upon your death. They must go to someone or to some entity, and if you don't direct where they are to go, the State of Florida will.

Property and assets that should be included in a will and that should have beneficiaries named to them include:

  • real property, including land or buildings
  • cash from financial accounts like checking accounts, money market accounts, savings accounts, etc.
  • cars, boats, and other auto vehicles
  • intellectual property, royalties, patents, and copyrights
  • jewelry
  • artwork
  • furniture.

You can have as many beneficiaries as you like – whatever makes sense to you and is in accordance with the law.

You should also include "residuary estate" in your will and attach a beneficiary to it. A residuary estate is simply other property not specifically mentioned in the will.

Appoint Who Will Administer the Estate

When you die, an executor will administer the estate, meaning he or she pays debts and distributes the property in accordance with your will. You can name the person whom you want to oversee your estate. If you don't, then the court will. Having someone you trust is important – it can make the process move along more smoothly without the threat that your directions are being ignored. 

Designate Who Will Have Custody 

If you have minor children, you can name a person who you want to obtain custody of the child. This is critical if you are the only surviving parent, you and/or the other parent become incapacitated, or you and the other parent die simultaneously. For example, you are in a serious car crash that kills both of you. So, in the latter sense, there are two things here: make sure to designate a personal guardian for minor children and also – unrelated – make sure to address simultaneous death in the will.

One caveat, in Florida, if you choose someone out of state, that person must be a relative of the child.

When Should People in Florida Get a Will?

Any person aged 18 years or older can have a will, but does that mean you should have one? Yes. 

It is never too early to have a will. You could die unexpectedly. Of course, not everyone has assets or property that would constitute a reason to have a will, but it's important to remember that a will isn't just about distributing property and assets. If any of the below applies, then you want to seriously consider a will, even if you are young and have your whole life ahead of you.

  • Do you have a positive net worth? You don't have to be rich to need and want a will, but the more assets you have, the greater the reason to have a comprehensive estate plan to avoid probate.
  • Do you have minor children? Remember, even if your net worth isn't much, a will does more than distribute assets: you can name a guardian for minor children.
  • Are you married? If so, a will is important, especially if you want others to benefit from your estate, too.
  • Do you have pets? Florida law allows for the creation of pet trusts in a will, so if you want to make sure your pets are cared for in case of your untimely death, a will is a good idea.

If you have questions about a will or want to speak to an attorney to determine if now is the right time to get started, contact Veliz Katz Law today.

How is a Last Will & Testament Created?

In Florida, a last will and testament is valid when it is:

  • in writing (typed or handwritten);
  • signed by the testator at the end of the document (or signed by a proxy at the direction of the testator);
  • attested to by two witnesses of any age who are competent and have the ability to (a) observe the testator sign the will and (b) understand what the testator is doing.

The testator must sign the will as the two attesting witnesses watch or else the testator must acknowledge that he signed the will. Then, the witnesses sign the will in the presence of the testator. After the latter has been completed, the will is executed.

A will is not recognized by Florida law if it is:

  • a holographic will, meaning it is handwritten and signed only by the testator without witnesses; or
  • oral wills not in writing and only spoken from one person to another person. 

Out-of-state wills may be valid even if otherwise invalid in Florida if the will is in writing and valid in the jurisdiction of its execution. Military wills are also valid in Florida because they are executed pursuant to Federal law. If the will is invalid, the estate is probated and treated as though the person died intestate.

Can a Will Be Amended in Florida?

A will can be amended as many times as the testator wishes. The typical method is by use of a Codicil. A Codicil is a document that amends or supplements an existing will so that you don't have to create an entirely new will. Codicils can, for example, amend a will to:

  • recognize children born after the will's execution;
  • revoke a current executor and appoint a new one; or
  • revoke a current beneficiary and appoint a new one.

Sometimes, though, it makes sense to revoke a will. Florida Statutes § 732.506, allows a testator to effectively revoke a will (or codicil) by destroying it. Examples of ways to destroy a will include shredding it or burning it. A testator must, however, execute a new will that contains terms inconsistent with the original will and expressly state all previous wills and codicils are revoked.

Contact a Skilled, Resourceful Wills Attorney in Orlando FL Today

If you need a will, want to update an existing one, or just have questions, contact Veliz Katz Law today. We are here to help make sure your estate plan represents what you want, benefits you and your heirs, and is laid out in accordance with Florida law.

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