What is a last will and testament?
A last will and testament is a document that states who is to receive the assets of a deceased person (the decedent). Of all the legal documents prepared by lawyers, wills still require the most formality in signing. Wills not signed in accordance with the requirements of Florida law are void. One must sign wills at the end of the document in the presence of at least two witnesses who are both present at the same time and place with the testator (person making the will). Also, wills are usually signed in front of a notary public in addition to the witnesses so that the will is “self-proving” in case of death. Self-proving wills can be admitted to probate after the death of the testator without having the witnesses come to the courthouse.
The testator should keep the will in a safe place because it must be presented to the court at the time of death. A copy of the will may not be admitted to probate (except in unusual circumstances). Copies of the will should be available without having to gain access to a safe deposit box, as that may require a court order. The copy should identify where the original is held. The will cannot be deposited with the Probate Court before death.
What Happens if You Die Without A Will?
If a person dies in Florida without a will, Florida law has provided “back up” laws that generally provide that the closest living relatives receive his or her assets. However, there are enough loopholes and exceptions to this general rule that everyone is well served to contact a lawyer to advise them if they need a will and how to best have their wishes followed when they pass away.
What a Will Does
A will provides for the distribution of your property at the time of your death in any manner you choose (subject to some laws that prevent disinheriting a spouse or some children). Your will cannot, however, govern the disposition of properties that pass outside your probate estate (such as certain joint property, life insurance, retirement plans and employee death benefits) unless they are payable to your estate.
Wills can be of various degrees of complexity and can be utilized to achieve a wide range of objectives. If a will provides for the outright distribution of assets, it is sometimes characterized as a simple will. If the will establishes one or more trusts, it is often called a testamentary trust will. Alternatively, the will may leave probate assets to a preexisting inter vivos trust (created in your lifetime), in which case it is called a pour over will. In either case, the purpose of the trust arrangement (as opposed to outright distribution) is to ensure continued property management and creditor protection for the surviving family members, to provide for charities, and to minimize taxes
Aside from providing for the intended disposition of your property to spouse, children etc., there are a number of other important objectives that may be accomplished in your will.
• You may designate a guardian for your minor child or children if you have survived the other parent-and, by judicious use of a trust and appointment of a trustee, eliminate the need for bonds and supervision by the court regarding the care of each minor child’s estate
• You may designate a personal representative of your estate in your will and eliminate the need for a bond.
• You may choose to acknowledge or otherwise provide for a child (e.g., stepchild, godchild, etc.) in whom you have an interest, an elderly parent, or other individuals.
• If you are acting as custodian for the assets of a child or grandchild under the Uniform Gift (or Transfers) to Minors Act, you may designate your successor custodian and avoid the expense of a court appointment.
Good planning can also help your support of religious, educational, and other charitable causes.
What A Will Does Not Do
A will does not govern the transfer of certain types of assets, called non–probate property, which by operation of law or contract pass to someone else on your death.
How to Execute a Will
Wills are signed in the presence of two witnesses and certain formalities must be observed. A later amendment to a will is called a codicil and must be signed with the same formalities. In Florida, the will may refer to a memorandum disposing of tangible personal property, such as furniture, jewelry, automobiles, etc., which may be changed from time to time without the formalities of a will. A will that is formally executed with the signatures notarized with certain specified language is deemed in Florida to be self-proved and may be admitted to probate without testimony of witnesses or other additional proof.
For more information, contact our office to learn more.