What is a Will?

Florida Bar Consumer Information:

A will is a written direction controlling the disposition of property at death. The laws of each state set the formal requirements for a legal will. In Florida:

 

1. You, the maker of the will (called the testator), must be at least 18 years old.You must be of sound mind at the time you sign your will.

    

2. Your will must be written.

    

3. Your will must be witnessed in the special manner provided by law for wills.

    

4. It is necessary to follow exactly the formalities required for the execution of a will.

    

5. To be effective, your will must be proved in and allowed by the probate court.

No will becomes final until the death of the testator, and it may be changed or added to by the testator by drawing a new will or by a "codicil," which is simply an addition or amendment executed with the same formalities of a will. A will's terms cannot be changed by writing something in or crossing something out after the will is executed. In fact, writing on the will after its execution may invalidate part of the will or all of it.

WHAT CAN BE ACCOMPLISHED BY A WILL?

 

1. You decide who gets your property instead of the law making the choice for you.

    

2. You may name the personal representative (executor) of your will as you choose, provided the one named can qualify under Florida law. A personal representative is one who manages an estate, and may be either an individual or a bank or trust company, subject to certain limitations.

    

3. A trust may be created in a will whereby the estate or a portion of the estate will be kept intact with income distributed or accumulated for the benefit of members of the family or others. Minors can be cared for without the expense of proceedings for guardianship of property.

    

4. Real estate and other assets may be sold without court proceedings, if your will adequately authorizes it.

    

5. You may make gifts, effective at or after your death, to charity.

    

6. You decide who bears any tax burden, rather than the law making that decision.

    

7. A guardian may be named for minor children.

WHAT HAPPENS WHEN THERE IS NO WILL?

If you die without a will (or die "intestate," as the law calls it), your real and personal property will be distributed according to a formula fixed by law. In other words, if you fail to make a will, the inheritance statute determines who gets your property. The inheritance statute contains a rigid formula and makes no exception for those in unusual need.

When there is no will, the court appoints a personal representative, known or unknown to you, to manage your estate. The cost of probating may be greater than if you had planned your estate with a will, and the administration of your estate may be subject to greater court supervision.

MAY A PERSON DISPOSE OF HIS OR HER PROPERTY IN ANY WAY HE OR SHE WISHES BY A WILL?

While any sort of property may be transferred by will, there are some particular interests in property which cannot be willed because the right of the owner terminates automatically upon his or her death, or others have been granted rights in the property by Florida law. Some examples of these types of property rights or interests are:

 

• Except in certain very specific circumstances a homestead (that is, the residence and adjoining lands owned by a person who is survived by a spouse or minor child up to one-half acre within limits of an incorporated city or town or up to 160 acres outside those limits);

   

• A life estate: property owned only for the life of the owner.

   

• Any property owned jointly with another person or persons with right of survivorship (a tenancy by the entireties, which is limited to joint ownership between a husband and wife, would be one of these).

A person may not disinherit his or her spouse without a properly executed prenuptial or postnuptial agreement. The law gives a surviving spouse a choice to take either his or her share under the will, or 30 percent of the decedent's property after debts, but before taxes and expenses of administration. If the spouse elects to take the 30 percent, he or she must pay any additional estate tax which results from that election. Also if your will was made before the marriage and the will does not either provide for the spouse or show your intention not to provide for him or her, then your spouse would receive the same share of your estate as if you had died without a will (at least one-half of your estate) unless provision for the spouse was made or waived in a prenuptial or postnuptial agreement.

MUST A PERSON LEAVE HIS OR HER CHILDREN AT LEAST ONE DOLLAR EACH?

No, not even a cent. There is a popular misconception that when a will fails to make provision for or "remember" a child, the law "presumes" that the testator merely forgot. To meet this, the drafter of the will in olden times frequently gave "To my son, John, the sum of one dollar." If the testator desires not to make any provision in the will for a child, he or she may do so by merely stating that "I have deliberately made no provision herein for the benefit of my son, John, not because of any lack of love or affection, but because he has ample property of his own," or for such other reason as the testator may wish to express.

Children born after a will is signed or a child without adequate means of support may still have certain rights in the state under particular circumstances.

HOW LONG IS A WILL GOOD?

It is "good" until it is changed or revoked in the manner required by law. Your will may be changed as often as you desire while you are sane and not under undue influence, duress, or fraud, provided it is changed in the required manner. Changes in circumstances after the execution of the will, such as tax law amendments, deaths, marriage, divorce, birth of children, or even a substantial change in the nature or amount of your estate, may raise questions as to the adequacy of your will. All changes require a careful analysis and reconsideration of all the provisions of your will and may make it advisable to change the will to conform to the new situation.

DOES A WILL INCREASE PROBATE EXPENSES?

No. If there is property to be administered or taxes to be paid or both, the existence of a will does not increase probate expenses. A will frequently reduces expenses. If there is real or personal property to be transferred at your death, the probate court will have jurisdiction to ensure that it is transferred properly, either according to your will, or, if there is no will, in accordance with the inheritance statute. Thus, even if you have no will, your heirs must go to court to administer your estate, obtain an order determining your legal heirs, or obtain a determination that administration is unnecessary. These procedures are often more expensive than administering your will, since a properly drawn will names the beneficiaries and delineates procedures to simplify the administration process.

ARE ESTATES BY ENTIRETIES OR JOINT TENANCY WITH RIGHT OF SURVIVORSHIP SUBSTITUTES FOR A WILL?

An estate by entireties may be defined as a form of joint ownership of real or personal property by husband and wife with right of survivorship. A joint tenancy with right of survivorship is a form of ownership of real or personal property by any two or more individuals with rights of survivorship.

Such ownership always involves a gamble as to who dies first. The most that can be said is that in some cases, and for certain kinds of property, estate by entireties or joint tenancy with right of survivorship may be useful legal devices in addition to a will. Countless problems arise from the indiscriminate use of such estates by unskilled persons.

Ownership with survivorship should be created with a great deal of care. In some cases, ownership of too much jointly owned property may increase estate taxes.

In addition, ownership of too much jointly held property may cause a shortage of liquid assets available to pay your debts and other expenses following your death.

IS A LIFE INSURANCE PROGRAM A SUBSTITUTE FOR A WILL?

No. Life insurance is only one kind of property that a person may own. If a life insurance policy is payable to an individual, the will of the insured has no effect on the proceeds. If the policy is payable to the estate of the insured, the disposition of the proceeds may be directed by a will. The careful person will consult a lawyer, a life insurance counselor, and a financial advisor.

CAN A WILL REDUCE TAXES?

We are in a tax age. The foreseeable future suggests no material change. Plans made to meet daily conditions of life and business can usually be altered when it appears that they are unsound from a tax point of view. But after death little can be done by a personal representative to relieve an estate from a program or plan which is unsound tax-wise as a result of a poorly drawn will, or because you leave no will. By having a well-drawn will you might reduce estate taxes to less than they would be without a will.

WHO SHOULD PREPARE A WILL?

No sensible person would employ "just anyone" to fill teeth, take out an appendix, or deliver a baby. The person who wants these services performed skillfully with the minimum risk to health, life, property, or the accurate execution of his or her wishes, will engage the services of a trained professional person. Except in a dire emergency, these important tasks should not be performed by anyone except the professional.

The drafting of a will involves making decisions that require professional judgment which can be obtained only by years of training, experience, and study. Only the practicing lawyer can avoid the innumerable pitfalls and advise the course best suited for each individual situation.

SOME SUGGESTIONS CONCERNING WILLS

 

1. Marriage does not cancel a will in Florida, but a spouse acquired after the execution of a will may receive the same portion of your estate that he or she would have received had you died without a will (at least one-half).

    

2. If you have moved to Florida from another state, it is wise to have your will reviewed by a Florida lawyer in order to be sure that it is properly executed according to the laws of Florida, that the witnesses are readily available to prove your will in Florida, and that your personal representative is qualified to serve in Florida.

    

3. Before your will is effective to dispose of your property, it must be proved in the probate court. If the will is self-proving and otherwise valid, it may be admitted to probate without further proof. If the will is not self-proving, it generally must be proved by the oath of one of the witnesses. The oath must be given before a circuit judge, clerk of court, or a commissioner specially appointed by the court for that purpose. (Under certain circumstances, the court may permit the will to be proved by other means permitted by law.) A will can be made self-proving either at the time of its execution or later, which saves the time and expense of locating a witness and obtaining his or her oath after your death. For your will to be made self-proving, you must acknowledge the will before an officer authorized to administer oaths; the witnesses must make affidavits before the officer; and the officer must evidence the acknowledgment and affidavits by a certificate attached to or following the will.An appropriate form of certificate is prescribed by Florida law. The self-proving procedure is in addition to the normal execution and witnessing of the will, not in place of it.

    

4. No matter how perfect a will may be prepared for you, unless it is properly executed in strict compliance with the laws of Florida, the will may be entirely void. Be sure that you execute your will in the presence of your attorney, who knows exactly how and in what order the will should be signed.

    

5. Every person owning property who wishes to exercise control in the disposition of that property when he or she dies, should have a will regardless of the value of the property. Of course, the larger the estate the greater the tax consequences.

    

6. Living Will — Florida Statutes now provide for a written declaration by an individual specifying directions as to use of life-prolonging procedures. The declaration must be executed in a certain manner.

The material in this pamphlet represents general legal advice. Since the law is continually changing, some provisions in this pamphlet may be out of date. It is always best to consult an attorney about your legal rights and responsibilities regarding your particular case.